JAMMU & KASHMIR JUDICIARY

CRIMINAL JUSTICE SYSTEM

“Hang the rapists – We want justice.” a critical analysis of the slogan at India Gate …

Mr.Mahmud Anwar Alnasir

3/8/2013

Rape ... the very word sends shudders down the spine, and imagine the plight of that woman who undergoes the trauma, both physical as well as mental. The physical scars may heal up and in certain cases, they don’t, yet the mental agony lingers forever. The offence is as old as the genesis of mankind and if, ‘Gnostics are to be believed, Eve was the first ever women who was raped in the Garden of Eden by the henchmen of God’. The gory episode of the National Capital of Delhi, where a paramedic girl was returning home was brutalised raped and finally she succumbed to her injuries, shook the whole nation and was a rage in the media. Candle marches, even protests, a lot of politics, much ado about nothing, a Presidential Ordinance, a nationwide debate, the Union Government moving ahead with hurried parleys with its allies and Justice Verma Commission’s report which was perhaps the most speedy ever Commission to provide its recommendations and yet the headlines are full of incidences of Rape across the length and breadth of the Country. Those who wanted to say something about the menace, those who never knew what to say, yet dared to say ( only to evoke public protest), and those who saw it as an opportunity to reaffirm their ideological approach of distinguishing Bharat from India, and amidst all this WE all are still debating what should the law be, and at the same time arguing that CAN such law prevent the occurrence of such heinous brutal crimes. Not only that, in fact it has opened up altogether a new debate on the issue of Juvenile Justice system soon after it had been amended to include Section 7-A. Not only that we had a comment; ‘Old enough to rape yet juvenile!’Not only that, the social networking thinkers on twitter, facebook and other such sites had their own propositions to deal with the offence, with media taking full commercial footage and advantage in order to increase its TRP’s. submitting split second details and all probable theories of crime and criminology, interviewing the parents of victim, doctor treating her, her parents, the neighbourhood of the accused, their demographic profile, views and comments of the parents of the accused, confessional interviews all resulting into a quick media verdict of GUILITY. And one of the citizens innocently asks, “why the charge-sheet is being produced in the Court and why we do need trial, when the whole Nation knows what has happened?”Therefore the challenges being faced as a trial Judge in the trial Court in such cases are: 1 . The time limit and response to such crime, jurisdiction or no jurisdiction. 2. The time to complete investigation and filing of charge-sheets before the Court for trial. 3. The media trial and reporting of such cases both by the police as well as the proceedings of the Courts. 4. The confessional statements of accused and their parents/ relatives in front of media/ camera on the television. 5. The strength and reliability of eye-witnesses, especially when there is no witness protection/ rehabilitation programmes, where the witness is left to the vagaries of the mafia/ criminals against whom he has deposed or intends to depose. 6. The finding of Guilty by the media and media verdict. 7. The efficiency/ qualification of Investigating officer v/s the defence lawyer and the imbalances of adversarial system. 8. The ever fading memory of the eye witnesses, the pressures, and the inefficiency of the I.O. and collection of other scientific forensic evidence. 9. The jurisdictional quagmire of the Police stations. 10. Presumption of innocence and removal of bias against the accused. 11. India v/s Bharat. 12. The imputations of victim as abettor of crime. 13. Dress code norms especially for females in overtly patriarchal tradition. 14. Morality v/s law. 15. Juvenile and its compliance to international covenants. 16.The brutalisation of society and apathy towards responsibilities of a citizen. 17. Cosmopolitan educated society v/s the world of dropouts with their rustic outlook and primitive ideals 18. Urban over-exposure v/s the developmental pace and sudden DTM society at cross roads of cultural shocks. 19. Inconsistency in application of laws. 20. Islands of prosperity in the vast lands of adversity. 21. Justice technical or substantial.

The CRIMINAL JUSTICE SYSTEM ... ...

“Hang the rapists – We want justice.” a critical analysis of the slogan at India Gate …

8^th March; 2013._____________________________________Mahmud Anwar Alnasir[1]

Nahin nigaah main manzil to justjoo hi sahi ...

Nahin wisaal mayasar to arzu hi sahi....[2]

‘A man who treats a woman like a princess, must be a prince raised by a queen.’

Women and Violence:
In a statement the United Nations Secretary-General, said that violence against women is a universal problem that must be universally condemned. But he said that the problem continues to grow. "violence against women constitutes a violation of basic human rights and is an obstacle to the achievement of the objectives of equality, development and peace".[3]

Incest, Rape and Domestic Violence:
Some females fall prey to violence before they are born, when expectant parents abort their unborn daughters, hoping for sons instead. In other societies, girls are subjected to such traditional practices as circumcision, which leave them maimed and traumatized. In others, they are compelled to marry at an early age, before they are physically, mentally or emotionally mature.

Women are victims of incest, rape and domestic violence that often lead to trauma, physical handicap or death.

And rape is still being used as a weapon of war, a strategy used to subjugate and terrify entire communities. Soldiers deliberately impregnate women of different ethnic groups and abandon them when it is too late to get an abortion. Rape in armed conflict is a war crime -- and could, under certain circumstances, be considered genocide,[4]more women today were suffering directly from the effects of war and conflict than ever before in history.

"There is a deplorable trend towards the organized humiliation of women, including the crime of mass rape , We will press for international legal action against those who perpetrate organized violence against women in time of conflict.[5]"

As I write this article, some women might be getting raped and her cries tearing the heart of the sky and the earth... a glance at the internet, and the truth about my assertion unfortunately is answered in affirmative. Delhi 's shameful status as the rape capital has been confirmed yet again with three more rape cases being reported over the past 24 hours from different parts of the city. Statistics released in the Rajya Sabha on Wednesday reveal that four rape cases have been reported every day in the Capital this year.

This is double the number of cases the Capital witnessed last year, indicating that crime against woman is on rise despite tough measures being introduced, and many more promised, following the gangrape of a 23-year-old paramedical student on December 16 years. Delhi has seen a total of 181 rapes between January 1 and February 15 this year, Minister of State for Home Affairs Mullappally Ramachandran told the Upper House in a written reply to a question.[6] An analysis of the figure shows that this comes to four rapes per day while the average for 2012 in the same period was two cases. The Delhi Police's annual report for 2012 said that 706 rape cases were reported last year.

Last year saw a 23.43 per cent rise in the number of rapes compared to 2011 when 572 rape cases were registered. Police statistics show more than 50000 rapes are reported every year . In 1987 and 1991 number of cases reported were7767 and 9793 respectively. About 26% (11112) increase in number in the year 1992 – (NCRB). There is one rape in every 54 minutes . The police, however, claim that the rise can't be directly attributed to the law and order situation as more than 97 per cent accused were known to the victims. Every 60 minutes, two women are raped in this country. What is more horrendous is that 133 elderly women were sexually assaulted last year, according to the latest report prepared by the National Crime Records Bureau (NCRB). A total of 20,737 cases of rape were reported last year registering a 7.2 per cent increase over the previous year, with Madhya Pradesh becoming the “rape capital” of the country by topping the list of such incidents.

Going by the NCRB statistics, two women are raped in the country every hour. Madhya Pradesh accounted for 14.5 per cent of the total cases (3,010), with West Bengal following with 2,106 such incidents. Records of high incidence in other states include Uttar Pradesh (1,648), Bihar (1,555) and Rajasthan (1,238). The national capital had 598 cases in which 602 women were sexually assaulted.
In its report Crime in India — 2007, the NCRB noted that offenders were known to the victims in as many as 19,188 cases (92.5 per cent). That included 6,902 incidents in which neighbours were involved. Parents or close family members were involved in 405 cases while in 1,448 cases relatives were involved. “Everywhere in this country, over 90 per cent of the victims are raped by person known to them,” a senior police official said.
According to the official statistics of 1991, one woman is molested every 26 minutes. These statistics refer to the reported cases. Whereas, if the unreported cases were to be included, it would be a matter of seconds- rather than minutes. investigation of Most cases are not reported by victims because of various reasons such as family pressures, the manner of the police, the unreasonably long and unjust process and application of law; and the resulting consequences thereof. The official data show that rape cases have jumped almost 875% over the past 40 years -- from 2,487 in 1971 to 24,206 in 2011. .
Sexual harassment and rape are two sides of the same coin. Both showcase the power of man to dominate that of women. Both have one victim- ‘women’. Both are barbaric in nature; but many people extenuate sexual harassment to rape, just because the victims are not physically harmed. Whereas in rape- the victim is ravished like an animal for the fulfilment of desire and lust of another man. Both have the same object- to undermine the integrity of the victim, physically as well as mentally.
Sexual harassment is nothing less than the showcasing of male dominance. Given an opportunity, such men (those committing sexual harassment) would try fulfilling their desire. However, it also not true that all cases of sexual harassment are such- where the accused is guilty of conceiving the intention of a sexual intercourse.

Rape[7] the very word sends shudders down the spine... and imagine the plight of that woman who undergoes the trauma, both physical as well as mental. “While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.”[8] “A murderer kills the body but a rapist kills the soul”. "When a woman is ravished, what is inflicted is not mere physical injury but the deep sense of some deathless shame… judicial response to Human Rights cannot be blunted by legal bigotry.”[9] The physical scars may heal up and in certain cases, they don’t, yet the mental agony lingers forever. The offence is as old as the genesis of mankind and if, ‘Gnostics are to be believed, Eve was the first ever women who was raped in the Garden of Eden by the henchmen of God’.[10] Rape is a stigma which exists in the society from a long time. The dictionary meaning of word rape is “the ravishing or violation of a woman.” The rape victim is traumatized after the event; it is very difficult for a woman to come out of this trauma. Rape in India is a cognizable offence. Rape is a crime, which has a devastating effect on the survivors; it has been described as a “beginning of a nightmare”. The aftershocks include depression, fear, guilt-complex, suicidal-action, diminished sexual interest. etc., “one becomes afraid of’……..writes a victim, “half the human race”. Referring to the pitiable condition of women in society Mr. Justice S. Ahmad observed that “unfortunately, a woman in our country, belongs to a class or group of society who are in a disadvantaged position on account of several social barriers and impediments and have therefore, been victims of tyranny at the hands of men with whom they, unfortunately, under the Constitution “enjoy, equal status”. “Women also have the right to life and liberty; they also have the right to be respected and treated as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right to lead an honourable and peaceful life”. Rape is a crime against basic human rights and is also violative of the victim’s most cherished of the fundamental rights, normally, the right to life contained in Article 21 .[11]

The gory episode of the National Capital of Delhi,[12] where a paramedic girl returning home was brutalised raped and finally she succumbed to her injuries, shook the whole nation and was a rage in the media. The city had in December witnessed a series of protest after the December 16 gangrape of the girl, who died in Singapore on December 29.New Delhi - Demanding death for all the six accused. Candle marches, even protests, a lot of politics, much ado about nothing, a Presidential Ordinance[13], a nationwide debate, the Union Government moving ahead with hurried parleys with its allies and Justice Verma Commission’s report[14] which was perhaps the most speedy ever Commission to provide its recommendations and yet the headlines are full of incidences of Rape across the length and breadth of the Country. Those who wanted to say something about the menace, those who never knew what to say, yet dared to say (only to evoke public protest), and those who saw it as an opportunity to reaffirm their ideological approach of distinguishing Bharat from India[15], and amidst all this WE all are still debating what should the law be, and at the same time arguing that CAN such law prevent the occurrence of such heinous brutal crimes. Not only that, in fact it has opened up altogether a new debate on the issue of Juvenile Justice system soon after it had been amended to include Section 7-A.[16] Not only that we had a comment; ‘Old enough to rape yet juvenile !’ Not only that, the social networking thinkers on twitter, facebook and other such sites had their own propositions to deal with the offence, with media taking full commercial footage and advantage in order to increase its TRP’s.[17]submitting split second details and all probable theories of crime and criminology, interviewing the parents of victim, doctor treating her, her parents, the neighbourhood of the accused, their demographic profile, views and comments of the parents of the accused, confessional interviews all resulting into a quick media verdict of GUILITY.

And one of the citizens innocently asks, “Why the charge-sheet is being produced in the Court and why we do need trial, when the whole Nation knows what has happened?”

Therefore the challenges being faced as a trial Judge in the trial Court in such cases are:

Ø 1. The time limit and response to such crime, jurisdiction or no jurisdiction.[ efficiency, speed and evidence includes surveillances ]

Ø 2. The time to complete investigation and filing of charge-sheets before the Court for trial.[Max.time is 60days which in certain cases never sees the light of the day, and Court cannot tell the investigation agency to file the chargesheet within a stipulated time , not even after expiry of 60 days; though the accused gets right to bail by default.[18]

Ø 3. The media trial and reporting of such cases both by the police as well as the proceedings of the Courts.

Ø 4. The confessional statements of accused and their parents/ relatives in front of media/ camera on the television.

Ø 5. The strength and reliability of eye-witnesses, especially when there are no witness protection/ rehabilitation programmes, where the witness is left to the vagaries of the mafia/ criminals against whom he has deposed or intends to depose.

Ø 6. The finding of Guilty by the media and media verdict.

Ø 7. The efficiency/ qualification of investigating officer v/s the defence lawyer and the imbalances of adversarial system.

Ø 8. The ever fading memory of the eye witnesses, the pressures, and the inefficiency of the I.O. and collection of other scientific forensic evidence.[ Many a times it is middle pass Head Constable v/s even Ramjethmalani, as in State v/s Dhanajay Kumar.]

Ø 9. The jurisdictional quagmire of the Police stations and apathetic behaviour of Police.

Ø 10. Presumption of innocence and removal of bias against the accused.[As the demand of Capital punishment in this case, irrespective of the fact whether accused is entitled protection of law, such as Juvenile Justice Act.]

Ø 11. India v/s Bharat. [Urbanised cosmopolitan society v/s Rural, conservative, rustic society with feudal and colonial mindsets.]

Ø 12. The imputations of victim as abettor of crime. [The myths connected with Rape including secret desire of the victim to be raped.]

Ø 13. Burden of proof.[ Section 114-A, Indian Evidence Act.]

Ø 14. Dress code norms especially for females in overtly patriarchal tradition. [Remainants of Purdah v/s Hi fashion & exposed skin/body hugging fashion.]

Ø 15. Morality v/s law. [Patriarchal, masculinity and honour v/s Concepts of Gender Equality including freedom of lifestyle.]

Ø 16. Juvenile and its compliance to international covenants. [Old enough to rape, young enough as not to be tried with Criminals.]

Ø 17. The brutalisation of society and apathy towards responsibilities of a citizen.[Societal notions and norms with male child preference and upbringing. It also includes the attitudes of people in Conflict Zones.]

Ø 18. Cosmopolitan educated society v/s the world of dropouts with their rustic outlook and primitive ideals about society, gender roles and insensitivity towards human life’s value.

Ø 19. Urban over-exposure v/s the developmental pace and sudden DTM[19] society at cross roads of cultural shocks.

Ø 20. Inconsistency in application of laws.[Urban elite and poverty struck underprivileged]

Ø 21. The quantum of punishment including Capital punishment.

Ø 22. Islands of prosperity in the vast lands of adversity.

Ø 23. Justice technical or substantial.

Origins: Basis of Rape:
Hidden behind rape is the idea that the women are property . In the act of rape, a woman is treated as an object to be possessed, a medium through which the men exert their masculinity, their superiority and their dominance. The basis of rape is attack or attempt on the chastity of a female. This is because high value is attached to female chastity in all counties at all times. This indicated the bond and security of all social virtues and happiness. For purpose of law, the facts of force, the resistance and absence of consent are legally essential to constitute the offence[20].

Rape Theory:
Rape was narrowly identified as theft of virginity until the thirteenth century, deriving from the Latin derivation of the word meaning to seize or carry off. In ancient times, raiding tribes would seize and carry off not only goods, cattle and other spoils of war but also women. The rationale of the offence was the protection of a man’s proprietorial right to control access to his wife or daughters. From theft of virginity it evolved to an offence against the will of the victim and this required evidence of force or resistance, as it still does in most American states. In the mid twentieth century rape became “the protection of woman’s discretion by proscribing coitus contrary to her wisher’ or, in other words, non –consensual sexual intercourse. Some other theories about rape emerged too. Positive economic theory in the 1990s asserted on the basis of bio-economic principles of that sexual practice and norms were rational in the economist’s sense, males being sex seekers and females, sex-providers. Rape was a substitute for consensual sex rather than a manifestation of male hostility towards women[21].

Law relating to rape :
It is said that the present day’s law relating to rape has its origin in 1736 in Britain, when Sir Mathew Hale in his Hisoria Placitorium Coronae, or in other words, History of the Pleas of the Crown, presented common law rape doctrines which are immediately noticed to be hostile to the interests of women as one of the requirements was to inform the jury during the trail that the rape charges were easy to bring but difficult to defend[22].

Background & Historical Perspective:

What Does Islam Say About Rape?[23]

Rape is completely forbidden in Islam, and is a crime punishable by death. In Islam, capital punishment is reserved for the most extreme crimes which harm individual victims or destabilize society. Rape falls into both of these categories.

Islam takes very seriously the honour and protection of women. The Quran repeatedly reminds men to treat women with kindness and fairness. Rape is a horrible crime which causes a women humiliation and physical harm. Confusing the concept in Islamic law by equating rape to sex outside of marriage (adultery or fornication). However, throughout Islamic history there have been scholars who classified rape as a form of terrorism (hiraba).

Examples from Early Islamic History

During the lifetime of the Prophet Muhammad (SAW), a rapist was punished based on only the testimony of the victim. Wa'il ibn Hujr reported that a woman publicly identified a man who had raped her. The people caught the man and brought him to the Prophet Muhammad. He told the woman to go, that she was not to be blamed, and ordered that the man be put to death.

In another case, a woman brought her infant to the mosque and publicly spoke about the rape that had resulted in her pregnancy. When confronted, the accused admitted the crime to the Caliph Omar [24] who ordered his punishment. The woman was not punished.

Adultery or Terrorism?

It is incorrect to say that rape is merely a subcategory of adultery or fornication. In the well-known Islamic legal book, "Fiqh-us-Sunnah," rape is included in a definition of hiraba (terrorism or crimes of violence): "A single person or group of people causing public disruption, killing, forcibly taking property or money, attacking or raping women, killing cattle, or disrupting agriculture." This distinction is important when discussing the evidence required to prove the crime.

Evidence Required

Obviously, it would be a horrible injustice for an innocent man to be falsely accused of a capital crime such as rape. To safeguard the rights of the accused, the crime must be proven with evidence in court. There have been various historical interpretations of Islamic law, but the most common legal practice is that the crime of rape may be proven by:

Witness testimony - The testimony of four witnesses to the act itself is traditionally the requirement to prove adultery under Islamic law. Most Islamic scholars, however, recognize that adultery is voluntary while rape is coerced. Thus they have moved beyond requiring this evidence alone to prove sexual assault.
Confession - The full and complete confession of the perpetrator is accepted as evidence under Islamic law.
Physical evidence - Even in early Islamic history, many Islamic jurists accepted physical evidence to prove a woman's lack of consent. As forensic science becomes more adept at providing physical evidence of sexual assault, such evidence is more commonly accepted.

These strict evidence requirements are needed for rape to be considered a capital offense. If the sexual assault cannot be proven to such a degree, Islamic courts may have discretion to find the man guilty but order a less severe punishment, such as jail time or monetary fines. According to several classical interpretations of Islam, the victim is entitled to monetary compensation for her loss as well, in addition to the state asserting its right to prosecute.

It should be noted that rape is a crime of violence, and is not "caused" by a woman's actions in any way. Women should always use caution, however, and be aware of their personal safety. Anyone who is forced to do something is not guilty of any sin, even in the case of someone being forced to denounce their faith in Allah. The Quran says: "Except him who is forced thereto and whose heart is at rest with Faith..."[25] It was also reported that the Prophet Muhammad said, "Allah has pardoned my people for the acts they do by mistake, due to forgetfulness, and what they are coerced into doing." A Muslim woman who is the victim of rape will be rewarded by Allah for bearing her pain with patience, perseverance, and prayer.[26] The punishment for rape in Islam is same as the punishment for zina, which is stoning if the perpetrator is married, and one hundred lashes and banishment for one year if he is not married.

The Arabic word ightisaab refers to taking something wrongfully by force. It is now used exclusively to refer to transgression against the honour of women by force (rape).

This is an abhorrent crime that is forbidden in all religions and in the minds of all wise people and those who are possessed of sound human nature. All earthly systems and laws regard this action as abhorrent and impose the strictest penalties on it, except a few states which waive the punishment if the rapist marries his victim! This is indicative of a distorted mind let alone a lack of religious commitment on the part of those who challenge Allah in making laws. We do not know of any love or compassion that could exist between the aggressor and his victim, especially since the pain of rape cannot be erased with the passage of time – as it is said.

Some scholars also say that he is required to pay a mahr to the woman. “In our view the man who rapes a woman, whether she is a virgin or not, if she is a free woman he must pay a “dowry” like that of her peers, and if she is a slave he must pay whatever has been detracted from her value. The punishment is to be carried out on the rapist and there is no punishment for the woman who has been raped, whatever the case.”[27] “In the case of a woman who is forced (raped): if she is a free woman, the one who forced her must pay her a “dowry” like that of her peers, and the hadd punishment is to be carried out on him. This is the view of al-Shaafa’i, and it is the view of al-Layth, and it was also narrated from ‘Ali ibn Abi Taalib.[28]

Abu Haneefah and al-Thawri said: the hadd punishment is to be carried out on him but he is not obliged to pay the “dowry”.

“The evidence for what we say is that the hadd punishment and the “dowry” are two rights, one of which is the right of Allaah and the other is the right of the other person. So they may be combined, as in the case of a thief whose hand is cut off and he is required to return the stolen goods.”[29]

“The scholars are unanimously agreed that the rapist is to be subjected to the hadd punishment if there is clear evidence against him that he deserves the hadd punishment, or if he admits to that. Otherwise, he is to be punished (i.e., if there is no proof that the hadd punishment for zina may be carried out against him because he does not confess, and there are not four witnesses, then the judge may punish him and stipulate a punishment that will deter him and others like him). There is no punishment for the woman if it is true that he forced her and overpowered her, which may be proven by her screaming and shouting for help.”[30]

"O ye who believe! Ye are forbidden to inherit women against their will."[31]

Secondly:

The rapist is subject to the hadd punishment for zinah, even if the rape was not carried out at knife-point or gun-point. If the use of a weapon was threatened, then he is a muhaarib, and is to be subjected to the hadd punishment described in the verse in which Allah says (interpretation of the meaning):

“The recompense of those who wage war against Allah and His Messenger and do mischief in the land is only that they shall be killed or crucified or their hands and their feet be cut off from opposite sides, or be exiled from the land. That is their disgrace in this world, and a great torment is theirs in the Hereafter”[32]

So the judge has the choice of the four punishments mentioned in this verse, and may choose whichever he thinks is most suitable to attain the objective, which is to spread peace and security in society, and ward off evildoers and aggressors.[33]

Capital punishment in Saudi Arabia

Saudi Arabia has a criminal justice system based on a hardline and literal form of Sharia law due to Islam being the official state religion. The death penalty can be imposed for a wide range of offences[34] including murder, rape, false prophecy, armed robbery, repeated drug use, apostasy, adultery, witchcraft and sorcery and can be carried out by beheading with a sword,[35] or more rarely by firing squad, and sometimes by stoning. The 345 reported executions between 2007 and 2010 were all carried out by public beheading.[36] The last reported execution for sorcery took place in 2012. There were no reports of stoning between 2007 and 2010, but between 1981 and 1992 there were four cases of execution by stoning reported.[37]

In 2003, Muhammad Saad al-Beshi, whom the BBC described as "Saudi Arabia's leading executioner", gave a rare interview to Arab News [38]. He described his first execution in 1998: "The criminal was tied and blindfolded. With one stroke of the sword I severed his head. It rolled metres away...People are amazed how fast [the sword] can separate the head from the body." He also said that before an execution he visits the victim's family to seek forgiveness for the criminal, which can lead to the criminal's life being spared. Once an execution goes ahead, his only conversation with the prisoner is to tell him or her to recite the Muslim declaration of belief, the Shahada. "When they get to the execution square, their strength drains away. Then I read the execution order, and at a signal I cut the prisoner's head off," he said.

Saudi judiciary can impose the death penalty according to three categories of criminal offence in Sharia law:[39]

Hudud: Fixed Quranic punishments for specific crimes.[40] Hudud crimes which can result in the death penalty include apostasy, adultery, and sodomy.

Qisas: Eye-for-an-eye retaliatory punishments.[41] Qisas crimes include murder.[42] Families of someone murdered can choose between demanding the death penalty or granting clemency in return for a payment of diyya, or blood money, by the perpetrator.[43] A trend has developed of exorbitant blood-money demands: a recent report mentions a sum of $11 million demanded in exchange for clemency.[44]

Tazir: A general category, including crimes defined by national regulations, some of which can be punished by death, such as drug trafficking.[45]

A conviction requires proof in one of three ways:[46]

1. An uncoerced confession.

2. The testimony of two male witnesses can result in conviction. This excludes "hudud crimes", in which case a confession is also required.

3. An affirmation or denial by oath can be required.

Giving an oath is taken particularly seriously in a religious society such as Saudi Arabia’s, and a refusal to take an oath will be taken as an admission of guilt resulting in conviction.[47] Some of the crimes where Saudi law allows the death penalty:

· Adultery (Unmarried adulterers can be sentenced to 100 lashes, married ones can be sentenced to stoning.)

· Fornication

· Homosexuality (If a person is sodomized by his or her own consent, then he/she might also be sentenced to death)

· Murder

· Prostitution

· Rape

· Sexual misconduct

Pakistan, rape law, more or less are same like us but there is slide difference is that ?The Hudood Ordinance? Rape law, current in effect in Pakistan states that either the perpetrator must confess to raping his victim or there must be an eye-witness testimony from at least four Muslim adult males in order for the perpetrator to be convicted. Otherwise, the woman who reports the rape can be prosecuted herself for fornication if she is unmarried and adultery if she is married.

There is other law under the ordinance under which a man can be subject of a rape, in that ordinance A man and a woman are said to commit "zina" if they wilfully have sexual intercourse without being validly married to each other.

Zina is liable to hadd [punishment] if--
(a) it is committed by a man who is an adult and is not insane, with a woman to whom he is not, and does not suspect himself to be married; or

(b) it is committed by a woman who is an adult and is not insane with a man to whom she is not, and does not suspect herself to be married .Under its heading of zina, the Zina Ordinance includes the category "zina-bil-jabr" (zina by force) which lays out the definition and punishment for sexual intercourse against the will or without the consent of one of the parties. The section articulating the crime of rape, as zina-bil-jabr, states:

A person is said to commit zina-bil-jabr if he or she has sexual intercourse with a woman or man, as the case may be, to whom he or she is not validly married, in any of the following circumstances, namely:--
(a) against the will of the victim,
(b) without the consent of the victim,
(c) with the consent of the victim, when the consent has been obtained by putting the victim in fear of death or of hurt, or
(d) with the consent of the victim, when the offender knows that the offender is not validly married to the victim and that the consent is given because the victim believes that the offender is another person to whom the victim is or believes herself or himself to be validly married.

Explanation.--Penetration is sufficient to constitute the sexual intercourse necessary to the offence of zina-bil-jabr. Zina-bil-jabr is liable to hadd if it is committed in the circumstances specified [above].

Finally, the Zina Ordinance then specifies the evidence required to prove both zina and zina-bil-jabr[48] :
Proof of zina or zina-bil-jabr liable to hadd shall be in one of the following forms, namely:--
(a) the accused makes before a Court of competent jurisdiction a confession of the commission of the offence; or
(b) at least four Muslim adult male witnesses, about whom the Court is satisfied, having regard to the requirements of tazkiyah al-shuhood [credibility of witnesses], that they are truthful persons and abstain from major sins (kabair), give evidence as eye-witnesses of the act of penetration necessary to the offence .

When this law was enacted in 1977, proponents argued that it enacted the Islamic law of illegal sexual relations. The accuracy of that claim is addressed in detail later. First, it is important to note that the application of the Zina Ordinance in Pakistan has placed a new twist and a renewed urgency on the question of its validity. The twist is this: when a zina-bil-jabr case fails for lack of four witnesses, the Pakistani legal system has more than once concluded that the intercourse was therefore consensual, and consequently has charged rape victims with zina. So in this above context we can say that law of Pakistan is in some sense better than us as there women are also punished for the same offence but the process of proving the same are not adequate as in case of rape normally it is presume that such rapist must not confess and four adult male Muslim eye witness are very difficult to place before the court.

France’s rape law is almost just like us, where penetration is required for committing this offence. Criminal code of France Republic states in its code as follows: Any act of sexual penetration, whatever its nature, committed against another person by violence, constraint, threat or surprise, is rape. Rape is punished by fifteen years' criminal imprisonment.[49]

Rape is punished by twenty years' criminal imprisonment[50]
1° where it causes mutilation or permanent disability;
2° where it is committed against a minor under the age of fifteen years;
3° where it is committed against a person whose particular vulnerability, due to age, sickness, to a disability, a psychic or physical deficiency or to a state of pregnancy, is apparent or known to the perpetrator;
4° where it is committed by a legitimate, natural or adoptive ascendant, or by any other person having authority over the victim
5° where it is committed by a person misusing the authority conferred by his functions;
6° where it is committed by several persons acting as perpetrators or accomplices;
7° where it is committed with the use or threatened use of a weapon.

Rape is punished by thirty years' criminal imprisonment where it caused the death of the victim. The first two paragraphs of article 132-23 governing the safety period are applicable to the offence set out under the present article.[51]

Rape is punished by imprisonment for life when it is preceded, accompanied or followed by torture or acts of barbarity. The first two paragraphs of article 132-23 governing the safety period are applicable to the offence set out under the present Article. So, in France we can say that in case of rape followed by torture and acts of barbarity have some special section, which guide those. From the above study we can say that our Indian law need some reform from various aspects such us, include woman in the definitions of rape as rapist and punished for the same when they help someone directly to commit such offence.[52]

English laws define, more particularly where the law cover all the aspect of rape. Under the Sexual Offences Act 2003[53], which came into force in April 2004, rape in England and Wales was redefined from non-consensual vaginal or anal intercourse, and is now defined as non-consensual penile penetration of the vagina, anus or mouth of another person. The changes also made rape punishable with a maximum sentence of life imprisonment. Although a woman who forces a man to have sex cannot be prosecuted for rape under English law, if she helps a man commit a rape she can be prosecuted for the crime (see, for example, the conviction of Claire Marsh in 2001). A woman can also be prosecuted for causing a man to engage in sexual activity without his consent, a crime which also carries a maximum life sentence if it involves penetration of the mouth, anus or vagina. The statute also includes a new sexual crime, called "assault by penetration", which also has the same punishment as rape, and is committed when someone sexually penetrates the anus or vagina with a part of his or her body, or with an object, without that person's consent.

Sexual offence act, 2003 states as follows:-
1 Rape
(1) A person (A) commits an offence if-
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

With compare to this law, law of India under penal code not cover the penetration of mouth and if such happened then that not amount to rape under our present law above all in India it is observe by our Hon'ble courts that in case of rape if any woman help to commit such rape she will be not charge for the offence of rape as she help to commit the rape but in England it happens and their punishment are also more than us so any one before committing this must think and in the mind of people there is some fear about law and it's punishment. Now a day’s all civilized country enacted their own law on this topic. India is not exception of this; it also enacted its own law under Indian penal code.1860. Section 375[54] define rape under our law which is known by all of us. The rape law under Indian Penal Code had gone through a lot of amendments. In 1983, amendment was made and, Custodial rape[55], marital rape[56] & Sexual Intercourse not amounting to rape were added[57].

AMENDMENTS TO RAPE LAWS IN 1983 were made to address mainly 3 issues :

A. Minimum Punishment in rape cases,[58] B. Special cases of rape.[59], C. Marital Rape.[60], D. Abuse of official power.[61], A. MINIUM PUNISHMENT.[62] 1. Whoever, except in the cases provided for by 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 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 the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

B. SPECIAL CASES OF RAPE like rape of a girl who is below twelve years of age, rape knowing the woman to be pregnant , gang rape, and custodial rape definitions, Specific (and sometimes increased) Punishment in some of these cases Shift of burden of proof to defendant from the victim in some of these cases.[63]

1. Rape of a woman who is under twelve years of age.[64] Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

2. Rape of a woman, knowing her to be pregnant.[65] Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Exemption from burden of proof if the victim states in court that she did not consent, then the court shall presume that she did not consent and the burden of proving consent shall shift to the accused

3. Gang Rape, “Where a woman is 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.[66] ”Thus even if five men force a women into having sexual intercourse with only one of them, the remaining four will also be considered to have committed rape under this law. Punishment: Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Exemption from burden of proof:

If the victim states in court that she did not consent, then the court shall presume that she did not consent and the burden of proving consent shall shift to the accused.

4. Custodial Rape[67]: Rape committed on a woman in their or their subordinate’s custody by

a) Police officer; (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 the police station to, which he is appointed; or

(iii) On a woman in his custody or in the custody of a police officer subordinate to him;

b) Public servant;

c) Management or the staff of a jail, remands home or other place of custody or a women’s or children’s institution

d) Management or on the staff of a hospital

Punishment: Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine. Prior to this amendment, minimum punishment wasn’t specified, hence this is commendable, but if the judge decides that there is an adequate reason the punishment can be reduced.

Other related Amendments include:

No person can disclose the name of the rape victim and if anybody discloses the name, he shall be punished with either description for a term which may extend to two years and shall also be liable for fine[68]. Presumption can be made as to the absence of consent in certain prosecutions for rape[69]. When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose[70]. Provisions for medical examination of rape victim are given[71]. There should be in camera trial for all rape victims[72].

How Indian law Courts have reacted to such incidences a retrospect:

Should Death Sentence be Accorded for Rape :-

Death for rapist has become a familiar theme in Parliament whenever the matter comes up for discussion in the wake of large-scale rapes taking place in the country. Public opinion also favours such a step. It is presumed that the solutions range from death to castration and whipping for such a heinous crime against the society. The existing penal provisions for rape under s376, IPC would reveal that punishment may extent up to life imprisonment with minimum of seven years under sub-s (1) to s376 and a minimum of ten years of imprisonment in case of custodial rape or rape on a pregnant woman, or on a child under 12 years of age or in case of gang rape, etc. under sub-s(2) to s376, IPC respectively. Since the legislature has already taken adequate measures, there is hardly any justification for death punishment, which, in fact, might be retrogressive, instead of having any deterrent effect. It might even bring down the rate of conviction further. A judge would prefer to acquit an accused of rape instead of sentencing him to death. At the same time, death sentence for rape may be questioned as unconstitutional Art.21 of the Constitution, as in case of United States in Ehrlich Anthony Cooker, in which Georgia’s death penalty statutes which authorised capital punishment for rape, was declared unconstitutional by the US Supreme Court .The Court upheld that the defendant’s death sentence violated the prohibition against cruel and unusual punishment under the English and Fourteenth Amendment to the US Constitution.[73]

Sidheswaar Ganguly v. State of West Bengal, In this case it was held that the consent of the victim is immaterial when she happens to be less than sixteen years of age on date of the occurrence, i.e., 20 April 1954, when the accused was alleged to have had sexual intercourse with the girl. Though the ossification test (X-ray examination) is not a sure guide to determine age, in the absence of birth certificate the conclusion as to the age could be drawn from the fact and circumstance including physique of the person and examination[74]

In Bhai Singh v. State of Rajasthan, for raping a Harijan girl of 7 by a boy of 18, the court sentenced him for 5 years imprisonment only. It decision given on the ground of that the boy was only 18years of age.[75]

Tukarram v. State of Maharashtra, This case is popularly known as Mathura Rape Case. In this case, Mathura, an 18 year old Harijan girl was called to the police station on an abduction report filed by her brother at the police station – Desaui Ganj in Maharashtra on 26th March, 1972. When they were about to leave the police station, Mathura was kept back at the police station in the late hours of the night by one of the constables, Ganpat, who was on duty. She was taken to a toilet and raped by Ganpat. Then another constable, Tukaram, molested and tried to rape her, but being too heavily drunk did not succeed. It was alleged that the two constables, while on duty, had bolted the doors of the police station from inside and plunged the place into darkness. The court held that the victim’s failure to appeal to companions and her conduct is meekly following the constable and allowing him to have his way to the extent of satisfying his lust amounts to consent for the sexual intercourse. Hence, not amounting to rape. The Session Court pronounced that there was a sexual intercourse but this was not rape. Mathura, the court said, submitted to the police voluntarily and she had lied there after that she was raped. The High Court and Supreme Court also presume Mathura’s consent so they acquitted the constables.[76] Senior Counsel “Ram Jethmalani” while defending the accused Policemen divided the concept of consent into two i.e. Express and Implied consent. He said that there was not express consent but it was implied because Mathura raised no alarm, there was no tearing of clothes, no semen on clothes, no cry for help etc, he again said if there had not been any consent, there would have been at least a cry for help. These circumstances are enough to show that there was implied consent. The Supreme Court acquitted both the accused and held that Mathura had raised no alarm; and also that there were no visible marks of injury on her person thereby negating the struggle by her. The judgment of Supreme Court was widely criticized both inside and outside the Parliament as an extraordinary decision sacrificing human rights and a slander on women under the law and the Constitution.

The prosecutrix Geeta was detained and forced to have sexual intercourse with the appellant and was later involved in flesh trade.The Hon’ble High Court had dismissed the appeal against the judgment and order of Additional Sessions Judge, Faridabad dated 12.8.1988 and 16.8.1988 convicting and sentencing the appellant to undergo R.I. for seven years and to pay a fine of ` 500/-, or else to further undergo R.I. for six months, under Section 376 IPC and R.I. for five years and a fine of ` 500/-, or in default to further undergo R.I. for six months under Section 366 IPC. However, it was directed that both the substantive sentences of imprisonment shall run concurrently. Supreme Court did not see any merit in the appeal and the same was, accordingly, dismissed. Appellant was on bail. His bail bonds and surety bonds was cancelled. He was to be taken into custody forthwith to undergo the remaining part of the sentence.[77]

Whereas, in Gurmit Singh’s , the Supreme Court has advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the Court should not describe her to be of loose character.[78]

The Supreme Court in the case of Madhukar , held that "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 her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard."This case highlighted the another aspect of the commission of rape.The court considered rape as intruding into the privacy of individual without consent.[79]

Compensation for the victim (Smt. Hanifa Khatoon)- a Bangladesh national- who was raped at the Howrah Station, by the railway security men. The High Court awarded Rs.10 lacs as compensation.An appeal was preferred and it was contended by the state that:
a) The railway was not liable to pay the compensation to the victim for she was a foreigner.
b) That the remedy for compensation lies in the domain of private law and not public law. i.e. that the victim should have approached the Civil Court for seeking damages; and should have not come to the High Court under Article 226.
The Supreme Court also held that the relief can be granted to the victim for two reasons- firstly, on the ground of domestic jurisprudence based on the Constitutional provisions; and secondly, on the ground of Human Rights Jurisprudence based on the Universal Declaration of Human Rights, 1948 which has international recognition as the ‘Moral Code of Conduct’- adopted by the General Assembly of the United Nation.[80]

The allegation against the appellant is that he had abducted the prosecutrix aged about 12 years daughter of Ameeruddin on 7th October, 2004 and had taken her to village Saifini, district Rampur, U.P. and had repeated sexual intercourse with her. It is alleged that the prosecutrix knew the appellant, who use to work in a meat shop near her house. It is alleged that the prosecutrix had stayed with the appellant from 7th October, 2004 till the night intervening 27-28th October, 2004.The court upheld and confirmed the judgment of the learned trial court convicting the appellant under Sections 363, 366 and 377 IPC. On the question of sentence also the court did not see any reason to interfere, keeping in view the age of the prosecutrix and the conduct of the appellant. The appellant at the time of offence himself was 40 years of age and was father of eight children. The eldest daughter of the appellant was 15-16 years of age. Appeal is accordingly dismissed.[81]

In Pramod Kumar’s case, the prosecutrix was gang raped by a TSR driver and three other persons behind the GokulPuri police station on the first floor of the house. Later she was thrown by them near a Gali. She reached home and informed about the incident to her husband. She was able to remember the name of the three accused person, as they were calling each other by their names. She was also able to identify the house in which she was raped. Next morning she along with her husband went to the place and identified one of the accused. The accused was beaten up and later taken to the police station. At police station the prosecutrix narrated the entire story as to how she was gang raped and gave names of three of the accused persons and handed over accused Raj Kumar, caught by her and her husband to police. However, the police was not in a mood to register a case of gang rape and spoil the record of police station. ASI Darshan Kumar was assigned the job of convincing the woman that it was not good for her to lodge an FIR. So, ASI Darshan Kumar told the prosecutrix that she was a family woman, if she got FIR lodged, next day her name would appear in the newspaper and she would get defamed in the society and neighbourhood. She will have to undergo medical examination and suffer more at the hands of society and relatives, so she should not insist for registration of FIR. ASI Darshan Kumar assured her that accused Raj Kumar would be arrested in some other case. The prosecutrix was hence sent back.ASI Darshan Kumar, as such, prepared a kalandra Under Section 107/151 Cr.P.C. and sent accused Raj Kumar to Special Executive Magistrate (SEM) Under Section 107/151 Cr.P.C. so that bond be got executed from him. Summons of 107/151 Cr.P.C. proceedings were sent by SEM to the complainant/prosecutrix i.e. victim in the case and she appeared before the SEM on 16th February, 2005. Before SEM, she narrated that she was gang raped by the accused persons. The SEM was shocked. He seemed to be a sensitive person and called for an explanation of the SHO [SEM in Delhi is normally an officer of the rank of Additional Commissioner of Police, an officer senior in rank than SHO]. He sent a copy of statement of victim as recorded by him to the concerned SHO and asked the SHO for MLC of the prosecutrix. He also asked the SHO to report his Action Taken within two days. He forwarded a copy of his order to Deputy Commissioner of Police (DCP) as well. However, the SHO was still not prepared to register an FIR, as a police station is normally considered by the SHO as his personal fiefdom and he considers himself to be the king of this kingdom. He still did not record the FIR and a reply was sent to the SEM that the woman had not complained of rape. Rather, it was stated that she was accompanied by her husband and her husband had also confirmed her statement. The woman seemed to have given a false statement before the SEM at somebody else's instance. When the matter again came up before the SEM on 2nd March, 2005, the SEM found that no explanation was sent to him by the SHO, so he sent a reminder to the SHO as to why no action has been taken. It is only after the reminder was sent by the SEM that on 2nd March, 2005, an FIR was registered in this case by recording a fresh statement of the victim. After registration of FIR, on such insistence, the investigation was done in this case and after completion of investigation, a challan was filed and accused persons were sent for facing trial. ...The Hon’ble Court observed, “that there is no doubt that there is no medical evidence in this case to corroborate the oral testimony of the prosecutrix, but the valuable evidence was deliberately washed out by the police when police refused to register the FIR on the very morning on 20th January, 2005 and did not carry investigation. All scratches and minor injuries get healed in six weeks time. Since the woman was a married woman, there would have been no other evidence available. Being married, she was used to intercourse and the only evidence which should have been available would have been her resistance which police did not collect and preserve.” The Court had to be cautious at the time of convicting the accused for serious and heinous crime of gang rape since it involves imprisonment for a period of 10 years and the court must carefully consider the testimony of the victim, if the conviction is based on the sole testimony of the victim, but, in this case I have no doubt in my mind that the victim had truthfully testified in the Court and had not falsely implicated any of the accused persons. The victim from day one had been crying hoarse about her gang rape. She had been consistent in her statement before the SEM as well as before the Trial Court. No suggestion had been put to her that she or her husband inculcated any kind of enmity against the appellants. The prosecutrix had no motive to grind against the appellants. No suggestion was given to her that she, at any point of time, had tried to black-mail any of the accused persons or extended any threat to implicate them falsely or compromised her position. Under these circumstances, the court considered that the Trial Court rightly convicted the accused persons on the basis of sole testimony of the prosecutrix.[82]

Mohsin, the appellant, has been convicted. Charged of raping a five year old girl in the bathroom.Trial court awarded rigorous imprisonment for a period of ten years and also imposed fine of Rs.10,000/-, failing which the appellant shall undergo rigorous imprisonment for a further period of six months. The same is in accord with the provisions of Section 376 IPC as the age of the prosecutrix is less than 12 years. Looking at the nature of the offence, manner and method in which it was committed, there is no ground or reason to reduce or modify the sentence awarded. Appeal is accordingly dismissed[83].

In Suresh’s case the accused was charged of raping a 1 and a half year old girl. One of the plea taken was that the accused was a juvenile. The learned Sessions Judge after considering the entire oral evidence and medical evidence had come to conclusion that it was a case of rape of one and a half year child at the hands of appellant. The medical evidence showed split laceration of vagina and the opinion of the doctor that this injury was caused due to penetration of fully erected penis and the oral testimony of witness leaves no doubt about commission of crime by the appellant. Perusal of trial court record show that the case of the appellant was first sent to Juvenile Justice Court and that is how the appellant was granted bail in such a heinous crime within 15 days. It is only when the complainant made a complaint before the Chief Justice that the appellant was not a juvenile and an inquiry into his case was conducted and the case transferred to the Sessions Court. Even as per the appellant's own admission he was 16 years and 5 months of age at the time of commission of crime. As per the prevalent law, in 1986, a person below 16 years of age only was considered a juvenile and was to be tried before the Juvenile Court. It is only in 2000 that the new Juvenile Justice Act came into force and the age of the juvenile was increased from 16 to 18 years. A report to this effect sent by learned Additional Sessions Judge, Shahdara to the learned District & Sessions Judge is available on record. This matter was also brought before this Court vide the Criminal Misc Petition 1658 of 1988 for cancellation of bail of the appellant wherein this Court considered that the appellant was not a juvenile, below 16 years of age and he was not entitled to be tried before the Children Court. Held : The case of the appellant was proved at trial beyond reasonable doubt. The medical evidence and the oral evidence prove it beyond reasonable doubt that the appellant committed rape on a tender age girl of one and a half year. I find no force in this appeal. The appeal is hereby dismissed.[84]

In 2007, the Supreme Court struck down a decision of the Karnataka High Court which had reduced the sentence of a convicted rapist to 3 and a half years. The High Court had stated that the sentence should be reduced since the accused was “a young boy of 18 years belonging to Vaddara Community and Illiterate”. The Supreme Court stated that there is a legislative mandate to impose a sentence for not less than 10 years. Only in exceptional cases, for “adequate and special reasons” can a sentence less than 10 years be imposed. It overturned the Karnataka High Court decision saying that there was an “absence of any reason which could have been treated as “special and adequate reason”[85].

It was clearly noted in Baldev Singh’s case, the Supreme Court said:
1. The fact that the incident is an old one (the incident took place in 1997) is a circumstance which fits into “adequate and special reasons” for reducing a sentence.
2. The parties have entered into a compromise among themselves.

The issue is whether this judgment has gone beyond the legislative mandate, and whether it has adhered to the principles laid down by earlier decisions of the Supreme Court. In 2007, the Supreme Court itself stated that for a crime like rape, strong reasons have to be given to reduce the sentence envisaged by the legislature. Moreover, the provision does not envisage the settlement of a crime by payment of compensation to the victim of a crime. A criminal act is seen in law as a crime against the whole of society (which is why the state’s prosecution agency, and not the victim, goes to court against alleged criminals). Therefore, criminal actions such as rape (or murder, robbery, kidnapping etc.) cannot be “settled” by the payment of compensation under the Indian Penal Code. In this light, it should be interesting to see whether the State files an appeal against this judgment[86].

But can a “compromise” between the victim and the accused persons be considered a factor in reduction of sentence? As the Court notes in the judgment, S. 376(2)(g) is not a compoundable offence and parties cannot withdraw or compromise the case, even with the permission of the court. Most crimes (including the present one) are considered as crimes against the entire society, which is why the State prosecutes the crime on behalf of the victim and society. If we let victims compromise their cases, when the law does not permit, we end up undermining the entire system. It could also lead to situations where victims are coerced into agreeing to a compromise. If we as a society want to change this position, it is for the Legislature to amend the law[87].

The Supreme Court has laid down the following guidelines for the trial of rape cases[88]:

1. The complaints of sexual assault cases should be provided with legal representation. Such a person should be well acquainted. The Advocates role should not merely be of explaining to the victim the nature of the proceedings, to prepare for the case and assist her, but to provide her with guidance as to how she might obtain help of a different nature from other agencies- for e.g. psychiatric consultation or medical assistance.

2. Legal assistance should be provided at the police Station, since the victim may be in a distressed state. Guidance and support of a lawyer at this stage would be of great help.

3. The police should be under a duty to inform the victim of her right to a counsel before being interrogated.

4. A list of lawyers willing to act in these cases should be kept at the police station.

5. Advocates shall be appointed by the Court on an application by the police at the earliest, but in order that the victim is not questioned without one, the Advocate shall be authorized to act at the police Station before leave of the Court is sought or obtained.

6. In all rape trials, anonymity of the victim must be maintained

7. It is necessary to setup Criminal Injuries Compensation Board with regard to the Directive Principles contained under Article. 38(1) of the Constitution of India. As some victims also incur Substantial losses.

8. Compensation for the victims shall be awarded by the Court on the conviction of the offender and by the Criminal Injuries Compensation Board- whether or not a conviction has taken place. The Board will take into account pain, suffering, shock as well as loss of earnings due to pregnancy and child birth if this accrued as a result of rape.

The National Commission for Women is asked to frame schemes for compensation and rehabilitation to ensure justice to the victims of such crimes.

The 172nd Law Commission report had made the following recommendations for substantial change in the law with regard to rape.

1. ‘Rape’ should be replaced by the term ‘sexual assault’.
2. ‘Sexual intercourse as contained in section 375 of IPC should include all forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal.
3. In the light of Sakshi v. Union of India and Others ‘sexual assault on any part of the body should be construed as rape.
4. Rape laws should be made gender neutral as custodial rape of young boys has been neglected by law.
5. A new offence, namely section 376E with the title ‘unlawful sexual conduct’ should be created.
6.Section 509 of the IPC was also sought to be amended, providing higher punishment where the offence set out in the said section is committed with sexual intent.
7. Marital rape: explanation (2) of section 375 of IPC should be deleted. Forced sexual intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence. On the same reasoning, section 376 A was to be deleted.
8. Under the Indian Evidence Act (IEA), when alleged that a victim consented to the sexual act and it is denied, the court shall presume it to be so.[89]

Criminal Law Amendment Act,2005
The Act, drafted by Ms Kirti Singh advocate and legal convener of AIDWA, is based on 172nd report of the Law Commission to amend the laws relating to sexual assault in Section 375, 376, 354 and 509 IPC and the relevant sections of the Code of Criminal Procedure 1973 and the Indian Evidence Act 1872. The recommendations are based on the national consultation on the issue organized by the national commission for women

· The major changes sought to be brought about through this amendment are substitution of existing section 375 of the IPC with the following:

“375.Sexual Assault: Sexual assault means –
(a) The introduction (to any extent) by a man of his penis, into the vagina (which term shall include the labia majora), the anus or urethra or mouth of any woman or child–
(b) the introduction to any extent by a man of an object or a part of the body (other than the penis) into the vagina(which term shall include the labia majora) or anus or urethra of a woman
(c) the introduction to any extent by a person of an object or a part of the body (other than the penis) into the vagina(which term shall include the labia majora) or anus or urethra of a child.
(d) manipulating any part of the body of a child so as to cause penetration of the vagina (which term shall include labia majora) anus or the urethra of the offender by any part of the child's body;”

Similarly, Amendment, 2005 brought forth many changes in rape laws, especially related to detailed procedure of examination of victim and accused both by inserting new sections: 164-A, 174 (1A), (b), and 53-A (a) CrPC, and made it clear that in addition to physical examination, it also shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the RMP thinks necessary in a particular case. Section 174 (1A), (b), CrPC inserted to make mandatory inquiry by the Judicial Magistrate in cases of custodial rape and murder cases.[90]

The suggestions have been formulated seeking certain amendments in both the Indian Penal Code (IPC) as well as the Code of Criminal Procedure (CrPC). Besides seeking to replace 'rape' with 'sexual assault', the bill also provides for substituting 'sexual intercourse' with 'sexual assault'[91].

Conclusion

It is expedient to change the human perspective and provide a new dimension to the definition of rape keeping mind the current scenario.We campaign and create awareness about gross injustices and abuse that happen in Indian Legal system. Almost in every offences, the rule of strict interpretation should be established so that there would be no loophole and chances for unjust in the social environment. the recent in change in definition of rape is due to incessant growth of such activity and liberal interpretation of the statute. The scenario is changing now even people talk about “Harmless rape” but how far is it justified is again a matter of controversy. How can people discuss about “Harmless Rape”. According to my point of view , the days are not far ahead , when people will start discussing about “Harmless Murder”. This sounds ridiculous but is really a grave concern to the society. Statute and legislation are completely dependent on the people and complete framework is done by them. But still, It is the requirement of the society to scrutinize the definition of rape and was highly appreciated by the society[92].

The Deeprooted Malaise in today’s society is ???

That We are still those wolves- even in shining armour, all of us – who, if given the opportunity and the circumstances, will not let the meat get away without a bite. It’s not us just in India, its same all over the world. Violence and forced compliance have been a way of life since the rise of human beings, territorial rights and the caste system.[93]

MIND OF A RAPIST

On June 12, 2009 three boys take turns at raping a Class XII girl in the backseat of a moving car in Surat and record the act for perversity on their phones. On 19 June, 2009 a 19 year old college girl is gangraped by her boyfriend and his friends circulate MMS clip they shot at first assault. What drives a man ??? a study conducted by a NGO Swanchetna, of 242 inmates of Delhi Tihar Jail over five years unravels the mind of a rapist: Before they were caught. They harboured an intrinsic hatred of women, habitually referred to them abusively, almost dehumanising them as objects of desire to enact their sexual fantasies on the victims they targeted and would operate in different geographical locations, with a change of place adding to new thrills. 70% of them showed psychopathic traits, belying the belief that rape is a sick crime committed by sane people. 68% of them had difficult childhood, what Jitendra Nagpal (Delhi based psychiatrist) calls as “extended paedophilia.” Rapists are usually someone the victim knows. They have a history of sexual assaults. They also feel powerfull in gangs. The initiators want the witnesses to be party to it so that nobody reports. Most of the rapists take certain professions that allow them access to unsuspecting victims. It could be doctor, a teacher, administrator in institutions such as orphanages or a spiritual guru. As Mumbai base psychiatrist Harish Shetty states, “Anyone in power will target the vulnerable in this globalised world.”Rape in India can become communal as in the case of Surat gangrape where perpetrators were young Muslim boys. It can also be political as in case of Shopian. It is always inhuman and planned with cold blooded precision, where psychological dominance is always preferred to brute force. Such persuation becomes easier once there is already a relationship of trust[94]. There are three kinds of rape: a. Anger, b. Power, and c. Sadism.[95]In an environment which fosters poor reporting of rapes, even shoddier justice and a deep rooted bias, is it any wonder that the mind of a rapist is often just a snapshot of everything that is collectively wrong.

The anatomy of gangrape is something that requires a far deeper analysis than the banning of half- naked women wobbling their assets at the camera. Yes, these songs are foolish and border on pornography — and perhaps those who participate in them are in grave danger of being dismissed as being superficial — but it could equally be argued that (as indeed it is) most film actors participating in them are doing so of their own free will. While for some it is unacceptable, for others it is a symbol of woman power and a celebration of a woman's sexuality, if she chooses to drop her clothes and dance semi-naked on screen. The reality is that the number of rape cases is unlikely to be affected by whether women wear burqas or bikinis, on-screen or off-screen. The gangrape, which appears to be far more prevalent in India than anywhere else in the world, requires serious examination, and should not be hijacked by extraneous discussions. Of course, all forms of rape are brutal and demeaning — but most of them are carried out by a single predator, and in privacy. The increasing number of gangrapes indicates specifically peculiar features, significant to our society. They indicate the manner in which young men are growing up, and what kind of value systems they appear to have imbibed within the family structure.

BRUTALISATION OF SOCIETY

There could be five primary reasons why gangrape denotes the brutalisation of our society and our families in the extreme.

1. The gangrape denotes a "sharing of the spoils", a criminal male-bonding that goes beyond the hours spent together in any other form of "recreation". Recent cases show that it is even regarded as "entertainment", with videos of the atrocity being shared on the internet.

2. Unlike other forms of rape, this has an inbuilt voyeuristic arousal — possibly linking it to the lack of privacy within most Indian families, in which these young men might have witnessed sexual activity within the household, and possibly an absence of affection towards the female members. Sex thus becomes not a private act, but something to be performed in public.

3. And most dangerous, is the lack of empathy the gang rapists show towards the woman, demonstrated both in this horrible pursuit, as well as the manner in which they goad each other into becoming more and more violent towards their victim. There appears to be a complete social and emotional disconnect many young men have towards women, even if they continue to live in a so-called family environment with their mother and sisters. They feel neither a sense of shame or responsibility towards them.

4. It also depicts a level of extreme sexual frustration — combined with a perverted sense of machismo, where sex is closely connected with violence. It is only about self-gratification.

5. There are some who feel that a certain class of men is deeply uncomfortable with women displaying their independence, receiving education and joining the workforce. The gangrape becomes a form of subduing the women, collectively, and establishing their male superiority.[96]

The frightening fact is that many of these alienated young men have reached their twenties with a bizarre attitude towards women, and little affection towards them. It has been a daily indoctrination and not a sudden change-of-heart brought about by an item number. The latter might reinforce their set of beliefs, but it will not change it.

MORAL POLICING AND ATTITUDES

Many of these attitudes are interlinked. And as we are aware, 80-year-old women have been raped, and so have three-year-olds. We must endeavour to change family attitudes towards women, and not blindly move towards censorship. Right now, we live in a liberal and democratic society, in which our attempt must be to discuss and debate. We must fight to preserve our freedoms, which could be circumscribed by both the state and a self-appointed moral police. In December 2008, protected by the first-ever BJP government to come to power in a southern state, Hindu vigilante mobs in Banglore and Manglore – the hub of India’s IT industry – began to attack women who wear jeans and Western clothes.[97]

MEDIA AND GRUESOME VIOLENCE

Yet, far more dangerous than the item number is the increasing gratuitous violence in Indian films (including regional cinema) — which definitely leads to a numbing of sensitivities. Sadly, the inhuman treatment of the 23-year-old and her friend on that bus seemed to be a "performance" staged by the men for each other, unmindful of the pain or suffering they had caused.

All mass media (including computer games) with violent scenes where victims are killed or tortured mercilessly, where gang violence is inbuilt — and guns are treated as toys — need to be looked at far more carefully.

One out eight Hollywood films depicts a rape; and by the age of 18, the average American will have seen 2,50,000 acts of violence and 40,000 attempted murders on Telivision.[98]

ORCHESTRATED AND POLITICALLY MOTIVATED VIOLENCE

As we saw even in this extremely tragic case, gangrape is very akin to mob violence when bloodlust takes over and people are degraded to the most bestial levels. India has had a long history of mob violence — the most ghastly, affecting millions of people, especially women, was during Partition. Most of the perpetrators of that violence, and of later incidents, continue to remain unpunished. Indeed, there are many families which turn into mobs against women and girl children, within the domestic structure. ‘The violence in Gujrat was directed especially at women. Sword injuries, mutilated breasts and burns of varying intensity characterized the early days of massacare. Doctors conducted post-mortems on a number of women who had been gang raped, many of whom had been burnt subsequently. A woman from Kheda district who was gang raped, had her head shaved and “Om” cut into her head with a knife by the rapist. Other instances of “Om” engraved with a knife on women’s backs and buttocks.’[99] As a society with a skewed gender ratio, we need to be extremely vigilant about the delivery of justice in crimes against women and in trying to bring disaffected family members, especially alienated and marginalised young men, back into a civilised discourse. Censorship, and regulating what women do and wear, is not the answer. The answer lies in correcting the manner in which families value men and women, and the emotional disconnect between them.[100]

Two major traits of urban middle class are; income and consumption.[101]

MAKE THE VIOLATER ACCOUNTABLE, GEAR UP THE SYSTEM

“There must be the feeling that there is a government and judiciary who will take such crimes seriously and nobody will be allowed to get away with committing such heinous crimes – that will serve as a deterrent, If you are able to create confidence in your judicial system and your policing system, then people will not need to demand the death penalty.”[102]

The low conviction rate for rape means that very often cases either languish in the Indian courts for years or those arrested end up walking free. “The real problem is the conviction rate, the delay in the administration of justice, the lack of sensitivity of the police with dealing with such matters, the lack of security in the city, Last year, the conviction rate in New Delhi for those who appeared in court for rape cases was less than 5 percent. The problem lies in the certainty of punishment rather than the severity.”[103]

As the legal process for death penalty cases is significantly longer and more complex than for cases of life imprisonment, lawyers, activists and academic experts fear that applying the death penalty for rape will only result in more acquittals than convictions. “The whole legal process to establish is so rigorous if it is for death penalty, we currently have approximately 40,000 cases of rape pending in different courts in the country, while we have only given 46 death penalties so far since 1947.”[104]

India which has 22,000 reported rapes/year does not have the wherewithal to prosecute and penalise rapists. Ms Sushma Swaraj & Sheila Dixit & others who scream for the death penalty, rapid trials etc. forget these ground realities. As few as 25 countries apply the death penalty for non-homicidal rape. They are: USA, China, Belarus, Iraq, Egypt, Jordan, Kazakhstan, Kuwait, Kyrgystan, Lesotho. Malawi, Mongolia, Morocco, Pakistan, Philippines, Saudi Arabia, South Korea, Syria, Taiwan, Tajikistan, Thailand, Tunisia, Uganda, United Arab Emirates, Uzbekistan[105].

A wider social movement of educating women of their rights, to conquer the menace, is needed more particularly in rural areas where women are still largely uneducated and less aware of their rights and fall an easy prey to their exploitation.

# It is expected that the courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities or insignificant lacunae in the evidence as otherwise the criminals would receive encouragement and the victims of the crime would be totally discouraged by the crime going unpunished.

# The courts are expected to be sensitive in cases involving crime against women. The verdict of acquittal made by the trial court in the case is an apt illustration of the lack of sensitivity on the part of the trial court.

# Another fact is delay in filing of F.I.R. in a case of rape it is dependent upon the facts of each case. The victim does not immediately rush to the police station to lodge an F.I.R. she has too overcome the trauma. There is consultation with the family members and a decision is taken. All these circumstances are to be kept in mind.

# It is noticed that some judges unnecessarily gives emphasis on the presence of spermatozoa in the victim's private parts. It is to be borne in mind that the definition of rape has a different connotation. A mild penetration would meet the ingredients of the crime. There may be several circumstances which affect the presence of the spermatozoa and hence, emphasis on the same is unwarranted.

EXECUTING THE NEIGHBOUR OR DEAR ONE’S :

But when the conversation moves, as it does so frequently these days, to the question of the death penalty for rapists, I find myself unable to want that kind of vengeance. There are the practical reasons: aside from reasoned opposition to capital punishment, there is no evidence to suggest that the death penalty will act as a deterrent. There is the strong possibility that it would make an already low rape conviction rate even lower, since judges would be unwilling to hand down such an extreme sentence except in the worst and most brutal cases.

Then consider this: in the two-week period before this brutal gang-rape, a number of rapes were reported from Delhi and the neighbouring State of Haryana. They included the rape of a five-year-old girl by a local temple priest, the rape of a nine-year-old by a neighbour, the rape of a 20-year-old girl who was initially too scared to report her neighbour, the rape of a 70-year-old woman in Haryana by a young relative. These incidents — women raped by neighbours, relatives, people who know them — are far more common than the gang-rapes, horrifying as those are, that draw intense media scrutiny.

According to the National Crime Records Bureau data for 2011, most rapes are not committed by strangers. “Offenders were known to the victims in as many as 22,549 (94.2 %) [of all cases reported in India in 2011],” says the NCRB report. “Parents / close family members were involved in 1.2% (267 out of 22,549 cases) of these cases, neighbours were involved in 34.7% cases (7,835 out of 22,549 cases) and relatives were involved in 6.9% (1,560 out of 22,549 cases) cases.”

Swinging from those gallows, you’ll have local shopkeepers, tutors, friends of the family. In 2011, if you’d had capital punishment for rapists, that would have been 7,835 neighbours, 1,560 distant unclejis and mamajis and 267 fathers, brothers, grandfathers and cousins on death row, plus thousands of family acquaintances and distant colleagues. And that’s without adding in the policemen, the army officers, the paramilitary troops and the odd politician playing out caste wars on the bodies of women, whom we’d discussed earlier[106] It’s going to be a long queue of familiar faces, the queue of those we want to hang for the act of rape. I wish I could believe that this sort of mass public execution — if we agreed that this was the way forward — would do more than stake our collective need for vengeance.

I wish I could think that public hangings would miraculously solve the problem of violence against women, but I don’t believe in fairy tales. Hanging the neighbour will not address the clear and present need to examine how violence works inside our own homes, within our own families.

JUVENILES IN CONFLICT WITH LAW

68% of Delhi Rapists were illiterates or school dropouts. 24% studied upto class X. 21.9% were graduates while as 80% of the accused were poor.[107]

Another intresting statistics at the NCRB reveals; 33,887 juveniles were arrested in 2011 for 25,178 instances of crime, including rape and murder.[108]Childern from broken homes or dysfunctional families often display weak cognitive development. According to an assessment by Manav Foundation on 170 juvenile boys who were counselled over the past six months, 56% had disturbed family background. Most of them are typical cases of lack of engagement with their school, family and friends. Delinquency affects urban industrial societies the most. When family fails to offer emotional and social protection, which all children deserve, they start looking outwards.If there is violence and deviant behaviour out on the streets, then it influences such children.

Swinging from those gallows, you’ll have local shopkeepers, tutors, friends of the family. In 2011, if you’d had capital punishment for rapists, that would have been 7,835 neighbours, 1,560 distant unclejis and mamajis and 267 fathers, brothers, grandfathers and cousins on death row, plus thousands of family acquaintances and distant colleagues. And that’s without adding in the policemen, the army officers, the paramilitary troops and the odd politician playing out caste wars on the bodies of women, whom we’d discussed earlier[109] It’s going to be a long queue of familiar faces, the queue of those we want to hang for the act of rape. I wish I could believe that this sort of mass public execution — if we agreed that this was the way forward — would do more than stake our collective need for vengeance.

CONDONING STATE SPONSORED VIOLENCE IN THE INTREST OF JINGOISTIC NATIONALISM

And there are other, more clinical questions to ask those who support the death penalty. What about custodial rapes, and rapes by serving army officers and military personnel? The soldiers accused of rape in states Such as Kashmir and Chhattisgarh — if those accusations are true, shouldn’t the death penalty apply to them as well? The eight men who raped a Dalit woman in Haryana this year in October, who took cellphone photographs as trophies: death for them, too? All of those implicated in the rapes of women from the lower castes, in every State from Haryana to Madhya Pradesh to Bihar: if we could, would we send them to the gallows along with the Delhi six[110]? So if you agree that the death penalty should apply to rapists, be consistent about it, and prepare for the consequences. The people you’ll be hanging, more than 90 per cent of the them, won’t be strangers, the gangs of youth whom we can safely think of as marauding outliers, the threatening outsider beyond the threshold of our homes.

Protest is important, it shakes the conscience of society, it brings people close to change, it makes them feel part of the change. And there is a good chance that the current wave of protests will lead to at least some results — perhaps even just fast track courts. But perspective is also important: we need to ask ourselves: if it had been the army in Manipur or Kashmir who had been the rapists, would we have protested in quite the same way? Very likely not, for there nationalism enters the picture. Remember Kunan Posphpora in the late nineties when the Rajasthan Rifles raped over 30 women? Even our liberal journalists found it difficult to credit that this could have happened, that the army could have been capable of this, and yet, the people of Kunan Poshpora know. Even today, women from this area find it difficult to marry — stigma has a long life. Would we have been as angry if the rape had taken place in a small town near Delhi and the victim had been Dalit? Remember Khairlanji? Why did that rape, of a mother and her daughter, gruesome, violent, heinous, and their subsequent murder not touch our consciences in quite the same way[111].

The collective consciousness of the country is demanding stronger laws against rape. However little do we realise that no amount of strong laws can improve the conviction rate unless police present a watertight case before the court. At present the conviction rate in Rape cases is 26.4%. This is worse than the conviction rate in Murder cases which stands at a rate of 38.5%. Only a quarter of women who have reported are likely to get any semblance of justice. What happens to the remaining 73.6% accused where prosecution fails to prove beyond reasonable doubt the guilt of the accused ?[112]

How Can You Help When Someone You Know Is Raped?

Rape victims experience a broad range of powerful emotions--a friend or family member can help by allowing her to express these feelings. You can help by listening and validating her fears and feelings; by helping her make changes to her environment that make her feel safer. Rape victims often feel unsure of themselves and their ability to make decisions. Encourage her if she finds it difficult to make decisions by helping her to understand her choices, but let the decisions be her own.

Remind her that the rape was not her fault. Advocate for her when she needs your help facing the medical and legal systems. Let her know that you believe in her, and that you know that she has the strength and courage to heal and survive.

Getting Help: The Key to Being a Rape Survivor--Not a Rape Victim

Many years ago, I had a roommate who told me she had been raped several months before she moved in with me. She trembled and stuttered as she relived her terrifying ordeal. As she described each agonizing detail, her lips began to swell--swelling to the point I wanted to call for help. She declined my offer to find help, saying she would be alright. I hope she is...

Survivors of rape often experience changes in their overall health. Sleep disorders such as insomnia or eating disorders often occur following rape or sexual assault. Some women experience nightmares and flashbacks. Others encounter body aches, headaches, and fatigue.

Post-Traumatic Stress Disorder (PTSD) is the most common disorder seen in victims of rape or sexual assault. Rape victims sometimes experience anxiety, depression, self-injury, and/or suicide attempts, as well as other emotional disorders. They sometimes try to cope with their feelings by indulging in alcohol or drugs.

Women who have been raped, many times, face an enormous uphill emotional battle to regain self-respect, self-esteem, self-assurance, and self-control. It is a battle that can be won with the help of caring and supportive friends, family, counselors, and physicians.[113]

There is hope--but you must take the first step and ask for help.

[1] Mr. Mahmud Anwar Alnasir is presently working as Associate Sessions Judge J&K Judiciary. Presently posted as Special Mobile Magistrate Electicity, Kupwara, Bandipora & Baramulla. Kashmir.

[2] faiz ahmed faiz, urdu poet.
[3] Fourth World Conference on Women in Beijing in September 1995. Boutros Boutros-Ghali. Secretary General. U.N.O.

[4] Ibid.

[5] Boutros B Gali, Secy Gen. UN at the Declaration 4^th International Women Conference, Beijing.1995.

[6] PTI New Delhi, March 6, 2013 | UPDATED 16:48 IST

[7] Definition of Rape as per Black’s Law Dictionary, Oxford dictionary [The crime of rape generally refers to non-consensual sexual intercourse that is committed by physical force, threat of injury, or other duress. A lack of consent can include the victim's inability to say "no" to intercourse, due to the effects of drugs or alcohol or threat. Rape can occur when the offender and victim have a pre-existing relationship or even when the offender is the victim's spouse.

Rape is said to occur when a man has sexual intercourse with a woman

Against her will.

Without her consent even if the consent is granted under duress.

A man is also said to commit rape if he has sexual Intercourse with a woman with her consent if he knows he is no her husband and consent is given because she believes he is the man to whom she is legally married to.

A man is said to commit rape with or without her consent if the woman is under 14 years or of unsound mind.

The criminal code provides the following terms as offence of rape.

“Any person who has unlawful carnal knowledge of a woman or man without his/her consent, if the consent is obtained by means of force, threat, intimidation, or by fear of harm, by means of false and fraudulent representation as to the nature of the act as in the case of a married woman by impersonating her husband is guilty of the offence called rape.”]

[8] Justice Arijit Pasayat, Judge Supreme Court of India.

[9] Justice V.R.Krisna Iyer, Judge Supreme Court of India in Rafiq v/s State , 1980 Cr.LJ 1344 SC.

[10] Bible. The story of Genesis.

[11]

[12] [Damini Gang-rape Case of NCT Delhi.] Under Sections.366/376/302 I.P.C. (16.Dec.2012.)

[13] Ordinance ,The Criminal Law (Amendment) Ordinance, 2013 was promulgated by the President of India, Pranab Mukherjee, on 3 February 2013 which provides for amendment of Indian Penal Code, Indian Evidence Act, and Code of Criminal Procedure, 1973 on laws related to sexual offences. Indian Express. 3 February 2013 http://www.indianexpress.com/news/president-pranab-mukherjee-promulgates-ordinance-on-crime-against-women/1068720/. Retrieved 4 February 2013.The Ordinance provides for death penalty in case of rape. According to Minister of Law and Justice, Ashwani Kumar, 90 percent of the suggestions given by the Verma Committee Report has been incorporated into the Ordinance Express. 3 February 2013. http://www.indianexpress.com/news/president-pranab-mukherjee-promulgates-or. Indian dinance-on-crime-against-women/1068720/. Retrieved 4 February 2013. India Today. 3 February 2013. http://indiatoday.intoday.in/story/president-signs-ordinance-to-effect-changes-in-laws-against-sexual-crimes/1/248740.html. Retrieved 4 February 2013. "We have accepted 90% of Justice Verma panel's recommendations: Law Minister". NDTV. 3 February 2013. http://www.ndtv.com/article/india/we-have-accepted-90-of-justice-verma-panel-s-recommendations-law-minister-to-ndtv-325775. Retrieved 4 February 2013.

[14] On 22 December 2012, a judicial committee headed by J. S. Verma, a former Chief Justice of India, was appointed by the Central government to submit a report, within 30 days, to suggest amendments to criminal law to sternly deal with sexual assault cases.

[15] RSS Supremo. Mohan Bhagwat’s statement on the Delhi Moving Bus Gang Rape Case.

[16] Amendment of 2010. In the Juvenile Justice Act.

[17] Transmission Rating Perception for Prime time viewership fetching revenues in terms of advertisements.

[18] Section 167/497 Cr.P.C. (Old Code 1893.)

[19] Dehati Turned Modern.

[20]

Need on capital punishment in the context of rape ( Save as .pdf )
Published : October 24, 2012 \| Author : Chanduilnu

[21]

Need on capital punishment in the context of rape Published : October 24, 2012 \| Author : Chanduilnu chanduilnu@legalserviceindia.com

[22] Janet Loveless, Criminal Law, Test, Cases, and Materials ,Oxford University press, First Edition 2008.

[23] http://www.islamqa.com/index.php?ref=723…

[24] Umar was born in Quraish tribe in Makkah. Strong and wealthy merchant. When the Prophet Muhammad began preaching his message, Umar was one of his most stern opponents. He participated in harassment of torture of the early Muslims, trying to make them give up their faith. Umar finally embraced Islam after reading verses of the Quran at his own sister's house. Umar's drastic conversion to Islam helped the small Muslim community gain power and respect. Thereafter, Umar was a firm believer who fiercely defended the Muslim community from attack.

Umar also established the public treasury, organized the armies to fight the Persian and Roman Empires, appointed judges, and supervised the construction of public facilities. Cities were built with irrigation canals and paved roads, and education in the Quran became more widespread. Umar also ensured that non-Muslim citizens were given government subsidies.

634 - 644 A.D.

[25] (An-Nahl:106).Holy Quran.

[26] [Academic review written by Hina Azam from the University of Texas at Austin. Her work, "Competing Approaches to Rape in Islamic Law," will be published in the forthcoming "Feminism, Law and Religion" (Ashgate Publishing, 2013).

[27] Imam Maalik (may Allaah have mercy on him) Al-Muwatta’, 2/734

[28] Shaykh Salmaan al-Baaji , Al-Muwatta’, 2/734

[29] Al-Muntaha Sharh al-Muwatta’, 5/268, 269

[30] Ibn ‘Abd al-Barr , Al-Istidhkaar, 7/146

[31] Surah Nisa chapter 4 Women, verse 19. Holy Quran.

[32] al-Maaidah 5:33, Holy Quran.

[33] http://www.islamqa.com/index.php?ref=723…

[34] "Saudi system condemned". The Guardian. 9 August 2003. Retrieved 27 July 2011.

1. [35] ^ http://abcnews.go.com/US/saudi-arabias-beheading-nanny-strict-procedures/story?id=18182757 Abcnews.go.com

2. [36] ^b U.S. State Department Annual Human Rights Reports for Saudi Arabia 2007-2010: "2010 Human Rights Report: Saudi Arabia". U.S. State Department. 8 April 2011. Retrieved 11 July 2011.; "2009 Human Rights Report: Saudi Arabia". U.S. State Department. 11 March 2010. Retrieved 11 July 2011.; "2008 Human Rights Report: Saudi Arabia". U.S. State Department. 25 February 2009. Retrieved 11 July 2011.; "2007 Human Rights Report: Saudi Arabia". U.S. State Department. 11 March 2008. Retrieved 11 July 2011.

3. [37] Vogel, Frank E. (1999). Islamic law and legal system: studies of Saudi Arabia. p. 246. ISBN 978-90-04-11062-5.

[38] "Saudi executioner tells all". BBC News. 5 June 2003. Retrieved 11 July 2011.

1. [39] Otto, Jan Michiel (2010). Sharia Incorporated: A Comparative Overview of the Legal Systems of Twelve Muslim Countries in Past and Present. p. 166. ISBN 978-90-8728-057-4.

[40] Ibid.

[41] Ibid.

[42] Ibid.

1. [43] "Saudis Face Soaring Blood-Money Sums". The Washington Post. 27 July 2008. Retrieved 11 July 2011.

[44] Ibid.

1. [45] Otto, Jan Michiel (2010). Sharia Incorporated: A Comparative Overview of the Legal Systems of Twelve Muslim Countries in Past and Present. p. 166. ISBN 978-90-8728-057-4.

4. [46] ^e Kritzer, Herbert M. (2002). Legal Systems of the World: A Political, Social, and Cultural Encyclopedia. p. 1415. ISBN 978-1-57607-231-8.

5. [47] Beling, Willard A. (1980). King Faisal and the modernisation of Saudi Arabia. p. 117. ISBN 0-7099-0137-2.

[48] Hudood Ordinance issued by Preisdent of Pakistan, Gen.Zial-ul-Haq. 1977.

[49] Article 222-23

[50] Article 222-24

[51] Article 222-25.

[52] Article 222-26.

[53] Sexual offence act, 2003 states as follows:- 1 Rape:
(1) A person (A) commits an offence if- (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents. (2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

[54] Rape as given in the Indian Penal Code, 1860. As per Section.375 of IPC a man is said to commit the offence of rape with a woman under the following six circumstances: 1. Sexual intercourse against the victims will, 2. Without the victim’s consent, 3. With her consent, when her consent has been obtained by putting her or any person that she may be interested in fear of death or hurt, 4. With her consent, when the man knows that he is not her husband, 5. With her consent, when at the time of giving such consent she was intoxicated, or is suffering from unsoundness of mind and does not understand the nature and consequences of that to which she gives consent, 6. With or without her consent when she is under sixteen years of age. Further explanation provided to the section states that penetration is sufficient to constitute the sexual intercourse necessary to constitute the offence of rape, whereas the exception leaves out marital rape altogether if the wife is not under fifteen years of age. Marital Exception: In R Vs. R(House of Lords, 1997),the House of Lords widened the scope of criminal liability by declaring that the husband could be charged as a principal offender in the rape of his wife. However, the above decision of the House of Lords has not been followed in India- where marital exemption to the husband ‘still exists’. Section. 375 therefore requires: a) Sexual intercourse by a man with a woman; b) The sexual intercourse must be under any of the six circumstances given in the section.

[55] S. 376(2)

[56] S. 376(A)

[57] S. 376(B to D)

[58] IPC Section 376 sub section 1

[59] (IPC Section 376 subsection 2 a-g )& A)

[60] (IPC Section 376 A)

[61] IPC Section 376,B,C,D

[62] (Section 376 subsection 1 of Indian Penal Code)

[63] (Section 376 subsection 2 (a-g) of Indian Penal Code)

[64] Sec.376 (2) (f)]

[65] Sec.376 Subsection 2- e.)

[66] ( Sec.376 Subsection 2- g)

[67] (Sec.376 Subsection 2 a, b, c , d).

[68] 228A of Indian Penal Code.

[69] 114-A of Indian Evidence Act

[70] 53(1) of Code of Criminal Procedure

[71] 164A of Code of Criminal Procedure.

[72] 327(2) of Code of Criminal Procedure.

[73] Rakesh Bhatnagar, Supreme Court rules out death penalty for rape and murder accused, DNA, published: Monday, Feb 27, 2012, accessed on 28th July 2012

[74] AIR 1958 SC 143.A case study need on capital punishment in context of Rape.

[75]

[76] Tukaram v. State of Maharashtra[AIR 1979 SC 185]

[77] Fateh Chand v. State of Haryana [AIR 2009 SC 2729]

[78] State of Punjab Vs. Gurmit Singh[(1996) 2 SCC 384], the Supreme Court

[79] State of Maharashtra Vs. Madhukar N. Mardikar [(1991) 1 SCC 57],

[80] Chairman, Railway Board Vs. Chandrima Das [AIR 2000 SC 988]

[81] Mohd. Umar v. State [MANU/DE/2974/2010]

[82] Pramod Kumar and Ors. Vs. State [MANU/DE/2596/2010]

[83] Mohsin vs. State of Delhi [MANU/DE/2598/2010]

[84] Suresh vs. State [MANU/DE/2408/2010]

[85] Supreme Court.2007.

[86] SC.2007.Baldev Singh v/s State of Punjab.

[87] http://lawandotherthings.blogspot.com/2011/03/compromise-formula-in-rape-sentencing.html

[88] [Delhi Domestic Working Women’s Forum vs. UOI (1995) 1 SCC 14]:

[89] 172^nd Law Commission Report. 2000.A.D.

[90] Ammendment in Cr.P.C. Central Code.2005.

[91] Criminal Law (Amendment) Bill, 2010

[92] “Rethinking Rape” by Ann J.Cahill

[93] Circle- Divesh Nath. Woman’s Era. March (First) 2013. P.114. ; divesh@womansera.com

[94] India Today, 6,July 2009. ‘Mind of a Rapist’p.40.

[95] Nicholas Garth. Director American Forensic Mental Health Associates.

[96] December 28, 2012, Skimming the surfaces of sexism isn’t enough . kishwardesai : Thu Jan 03 2013, 03:49 hrs . Indian Express.

[97] Somini Sengupta, New York Times, 8 February 2009. p.A5. also Outlook. 06.May.2002.

[98] National Coalition on Television Violence, America.

[99] Laxmi Murthy, ‘In the Name of Honour’, Corp Watch India,23 April 2002. http://www.indiaresource.org/issues/globalization/2003/inthenameofhonor.html(accessed 29 March 2009)

[100] Kishwar Desai is the author of 'The Sea Of Innocence', a novel about rape, to be published in early 2013., December 28, 2012,

[101] Ashish Nandi. ‘Blame the Middle Class’. Times of India, January 8,2008.

[102] Annie Raja, general secretary of the National Federation of Indian Women.

[103] Jayati Ghosh, a professor of economics at Jawaharlal Nehru University

[104] Ranjana Kumari, director at the Center for Social Research.

[105] V.Suresh Posted on: Dec 21, 2012 reacting to Op-Ed page in The Hindu. 20,Dec.2012.]

[106]

[107] NCRB.2007.

[108] , www.openthemagazine.com

[109] Anchal Bansal, ‘When Juvenile Rapes’ 11 March 2013 www.openthemagazine.com

[110] Op-Ed page in The Hindu. 20,Dec.2012. Nilanjana S. Roy

[111]

9 (Urvashi Butalia is a feminist writer and founder of Zubaan, an independent non-profit publishing house.) December 25, 2012 . The Hindu Daily.

[112] The week Feb,24.2013. p.50

[113] _{Sexual
Assault. Womenshealth.gov. http://www.womenshealth.gov/faq/sexual-assault.cfm.
Accesed 08/20/2009}

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