This article is written by Kanishka Nayak of 3rd Semester of Vivekananda Institute of Professional Studies, an intern under Legal Vidhiya
Abstract:
This article delves into the disturbing trend of post-rape murders, highlighting a significant increase in such cases as evidenced by data from the National Crime Records Bureau. Examining judicial precedents, the article scrutinizes the controversial application of capital punishment for rapists, exploring its impact on deterrence and unintended consequences. The nuanced interplay between instances of rape and murder, juxtaposed with the legal response, is subject to analysis, prompting an inquiry into the efficacy of the death penalty as either a remedial measure or a potential exacerbating factor within this complex framework. The significance of victim testimony in convictions is emphasized, contemplating the implications of potential legislative changes. This article navigates the complexities surrounding rape cases, urging a nuanced approach to address the multifaceted challenges and seek justice while safeguarding the rights of victim. The article questions whether the death penalty exacerbates the problem by incentivizing rapists to eliminate victims and explores the unintended consequence of potential rising homicides.
Keywords :
Capital punishment, rape, murder, death penalty, assault , Nirbhaya case, laws, Section 375.
INTRODUCTION
In modern India, the increase in murders following cases of rape has become a prominent societal issue, sparking a crucial investigation into the underlying causes of this dangerous trend. Rape an egregious violation of an individual ‘s autonomy and dignity defined as a type of sexual assault, involving sexual intercourse or other forms of sexual penetration carried out. Against a person without their consent, either by force, threat, or engagement with someone unable to provide legal consent due to factors such as minor status, mental illness, mental deficiency, intoxication, unconsciousness, or deception is involved.
For instance, here are some of the cases which have addressed these factors, For example in The case of People v. Turner[1] which gained attention for addressing issues of consent and the impact of alcohol in sexual assault cases. In this case a jury convicted defendant Brock Allen Turner of assault with intent to commit rape, sexual penetration of an intoxicated person, and sexual penetration of an unconscious person.[2]
And in the case of Chaman Lal v. State of H.P[3],The High Court of Himachal Pradesh held that the deposition of the doctors found that the victim was a mentally retarded girl with a low IQ of 62 who was not in a position to understand the good and bad aspect of the sexual assault and the accused took advantage of the same.
The apex court while upholding the findings of the High Court, further added that the High court has rightly observed that the case would fall under Section 375 IPC and has rightly convicted the accused for the offence under Section 376 IPC. Considering the fact and circumstances of the case as well as the deposition of witnesses, the Court observed that language as contented by the accused is not material during an IQ test and an IQ of 62 falls in the category of ‘mild mental retardation’. The Court upheld the punishment imposed by the High Court that of 7 year of Rigorous Imprisonment and further added that a person suffering from mental disorder or mental sickness deserves special care, love and affection, and in no case should be exploited or taken advantage of. [4]
Apparently, Rape isn’t confined to the physical act itself; it extends into a labyrinth of trauma, torment, and distress, in numerous legal systems, rape is often merged into the broader category of sexual assault. While historically attributed to uncontrolled sexual urges, contemporary understanding identifies rape as a pathological manifestation of power and control over the victim.[5]
However in legal context rape is defined under Section 375 of Indian Penal Code, 1860 amended by the Act of 2013[6] as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age.”[7]The term “rape” originates from the Latin word “rapie,”[8] meaning forced seizing. It represents one of the gravest offenses, not only impacting individuals but also tarnishing the fabric of society. It is a crime that reflects societal failure and brings disgrace to humanity as a whole. Rape not only causes immediate physical and psychological injuries but also leaves lasting scars, affecting the survivor’s social relationships, psychological well-being and overall quality of life it violates fundamental rights of the individual making them helpless, contradicting rights such as Article 21[9] of the Indian Constitution. Beyond legal aspects, it disregards the victim’s body, mind, and privacy, standing out as an ethically and physically repugnant crime in society.
As I mentioned before rape sheds light on a disturbing trend in crime, specifically the alarming rise in post-rape murders in India. This trend not only underscores the heinous nature of these acts but also raises concerns about the safety of rape survivors, as a majority of suspects are resorting to fatal violence after committing the initial crime. The incidences of rape victims being murdered is on the rise, with a majority of suspects killing
women after committing the act.
RISE IN POST-RAPE MURDERS
The incidences of rape victims being murdered is on the rise, with a majority of suspects killing women after committing the act. Data from the National Crime Records Bureau (NCRB) since 2017 reveals an increase in cases labelled as “Murder with Rape/Gang Rape.” For example, there was a 31% surge in such cases from 2017 to 2018, with the number of rape-murders escalating from 223 to 291 during this period [10].
According to the 2019 data from the National Crime Records Bureau (NCRB), there were 283 cases of rape-cum-murder involving 286 victims. Maharashtra had the highest count with 47 cases, followed by Madhya Pradesh (37), Uttar Pradesh (34), and Assam (27).In rape cases, the overall conviction rate was 27.8% while pendency rate of such cases was at 89.5%. A total of 4,05,861 cases of crime against women were registered in 2019, an increase of 7.3% over 2018.[11]
In 278 horrifying incidents of sexual predator killing his victim, total 287 women were killed in murder with rape/gang rape cases, states data tabled by National Crime Record Bureau (NCRB) report for year 2021. While Maharashtra reported 23 such incidents with 23 instances of murder with rape/gang rape.[12]
The crime rate registered per lakh women population stood at 62.4 in 2019 in comparison with 58.8 in 2018. The crime rate registered per lakh population went up marginally to 385.5 in 2019, compared to 383.5 in 2018. Among metropolitan cities, Delhi came first for crime against women with 12,902 cases and Mumbai second with 6,519 cases. The two cities were among 19 cities with over 2 million population[13]
A total of 31,677 incidents of rape were registered across India in 2021, Rajasthan (6,337) witnessed the maximum rape (Section 376 of IPC) in the country. Madhya Pradesh (2,947) came a distant second with less than half the numbers, while Uttar Pradesh (2,845) was the third worst followed by Maharashtra (2,496).[14]
The question that arises here is, what is the reason behind it? What is that motive which is making this already heinous crime more gruesome and atrocious?
Murder, the ultimate manifestation of covetousness , finds its profound psychological counterpart in rape. Rape can be seen as a symbolic form of murder, with a thin boundary separating the two. Human behavior is inherently intricate, and events cannot be attributed to a single factor. Therefore, understanding why such occurrences happen is challenging.
A significant argument questions the government’s swift move in 2013 to strengthen rape laws after The Nirbhaya rape case which exposed shortcomings within the legal system, prompting substantial reforms. The enactment of the Criminal Amendment Act, 2013 (Anti-Rape Act), broadened the scope of rape by incorporating offenses such as stalking, acid attacks, and voyeurism. Notably, it elevated the minimum sentence for rape, The minimum sentence was changed from seven years to ten years considering the increase in the number of rape cases. In cases that led to the death of the victim or the victim being in a vegetative state, the minimum sentence was increased to 20 years. Significantly, the victim’s character was deemed irrelevant in rape cases. Furthermore, the Juvenile Justice Act, 2015, modified the age threshold for treating individuals as adults in cases of violent crimes, including rape, lowering it from 18 to 16 years and thus addressing concerns related to juvenile offenders.
The legality of capital punishment in India has faced repeated challenges, with judges expressing varying opinions on its use. The disagreement stems from the belief that the death penalty contradicts the philosophy of rehabilitation. “which believes that punishment tends to reform criminals and that it accomplishes this by instilling in them a fear of repetition of the punishment and a conviction that crime does not pay, or by breaking habits that the criminals have formed, especially if the penalty is a long period of imprisonment which gives the prisoner no opportunity for improvement”[15] which is also the foundation of penalties in India . According to courts in India, capital punishment contradicts Articles 14, 20, and 21 of the Indian Constitution.[16]
In Sher Singh v. State of Punjab[17], The Supreme Court ruled that the death penalty is constitutionally acceptable and allowed within the limits set by the precedent in Bachchan Singh’s case, and this decision must be acknowledged as the prevailing law.
In the case of State of U.P v. Satish[18], The Supreme Court ruled that leniency in punishing serious crimes could have severe consequences. Consequently, they deemed the death penalty constitutional and fitting for the rape of a six-year-old girl.
CONTROVERSY SURROUNDING CAPITAL PUNISHMENT
° State of Maharashtra v. Vijay Mohan Jadhav and Ors. (2019)[19]
The victim and her colleague were subjected to a brutal attack at Shakti Mills. The court’s decision to find the defendants guilty of offenses like gang rape, disrobing, and unnatural acts reflects the severity of their actions. The subsequent imposition of the death penalty underscores the gravity of the crime and the court’s commitment to delivering justice in such heinous cases.
°Mukesh v. State (NCT of Delhi), (2017)[20]
Nirbhaya, a pseudonym used for the victim of the notorious 16 December 2012 Delhi gang rape incident, found herself in a horrifying situation on a chilly December night. Returning from a movie with her friend, they boarded an empty bus with tinted windows at the persuasion of one of the culprits. The assailants, six males including a 17-year-old, subjected them to a brutal assault. In a tragic attempt to protect Nirbhaya, her friend was also beaten. Beyond sexual violation, Nirbhaya’s body endured unimaginable mutilation, including the pulling out of intestines and mutilation of private parts. She succumbed to multiple organ failure, internal bleeding, and cardiac arrest on December 29th.
The brutal incident sparked widespread social outrage, manifesting in candlelight marches, solidarity movements, and protests. India’s longstanding reputation as an unsafe place for women intensified public anger. This sentiment transcended borders, attracting global attention and leading to the ban of the British documentary “India’s Daughter.” Social media played a pivotal role, with hashtags like #GangRape and #Nirbhaya trending worldwide. Amid this digital outcry, organizations like the All-India Progressive Women’s Association (AIPWA) and vocal individuals on platforms like Twitter amplified the demand for women’s rights. Feminist movements gained momentum, culminating in legal consequences for the perpetrators. The incident pressured the UPA government to enact stricter laws addressing rape and the treatment of juveniles involved in heinous crimes.
Governments nationwide are taking significant steps for women’s safety, including a 24/7 helpline in Karnataka, fast-track courts for swift justice, a 13-point plan in Tamil Nadu, amendments to Jammu and Kashmir’s laws, and the establishment of committees in Himachal Pradesh to address assaults on women.
The Supreme Court ruled that the case fell within the ambit of rarest of the rare cases. Thus by considering all the facts and circumstances of the case, HC ruled for the death penalty of all the four convicts.
If we look at cases like these which falls under the category of exceedingly exceptional instances, when the collective conscience of the community is profoundly disturbed, there is an anticipation that those holding judicial authority will impose the death penalty, regardless of their individual viewpoints. And we could see that giving capital punishment in such heinous and gruesome crimes is something which is very necessary to do justice to the judicial system and to society as a whole. “As because the object of the punishment is not only to stop the wrongdoer from doing something wrong the second time but also to set an example for those who have criminal tendencies and to make then have a fear of law. “
But still Activists and legal experts have consistently contended that if committing rape can result in the death penalty while murder does not, it might incentivize rapists to kill their victims to eliminate evidence and face a more severe punishment.[21]
The introduction of capital punishment for rapists in 2013 has faced legal challenges, with courts debating its contradiction to constitutional articles like Article 21 of the Indian Constitution, 1950 which talks about fundamental right to life and liberty. Judicial precedents, such as the Shakti Mills and Nirbhaya cases, reflect the gravity of the crimes and the court’s commitment to justice.
A rapist may perceive it as more advantageous to kill the victim, eliminating any possibility of a clear identification destroy and the evidence of the crime with the harsher penalty.This has led potential perpetrators to reconsider leaving their victims alive. If the death penalty for rape convictions becomes a prevailing trend, when death penalty for murder is given in rarest of rare case when the crime is very brutal and gruesome . It is feared that incidents of homicide may rise, as rapists could seek to eliminate their victims to evade prosecution. This unintended consequence, along with others, suggests that the prospect of a death sentence may transform rapists into both rapists and murderers. In a disturbing incident in Aithpura, UP, attackers deliberately poured acid on a victim, obscuring even her identity, and such acts might be driven by the belief that mutilation and murder could lead to the perpetrator’s acquittal .[22]
Is death penalty really a solution to the problem to solve the problem of increasing rape cases in India .Is death penalty really a solution?
It does make sense for the spirit of protection of victims against such crimes.
But in some scenarios it is making the situation even worse first of all data doesn’t prove the death penalty is a deterrent punishment . It increases the chances of murder and violence against women more. And specially the women who belong to the lower section of the society they become the easy target for them.
Even the Justice J.S. Verma Committee, established in the aftermath of the 2012 Jyoti Singh gang rape and murder, did not view the inclusion of the death penalty in rape cases as a measure to enhance the safety of women in India.[23]
The rationale behind advocating for the death penalty for rapists is rooted in the perception that rape is a fate worse than death. Challenging patriarchal notions of ‘honour,’ it is essential to question the stereotype of a ‘destroyed’ woman who loses her honour and supposedly has no place in society after experiencing sexual assault. The perspective here is that rape is a tool of patriarchy, an act of violence unrelated to morality, character, or behavior.[24]
If we look at the other aspect of this which can be the reason for the increasing cases of rapist killing there victims is the;
ROLE OF THE PROSECUTRIX/ VICTIM TESTIMONY
(i) “It is true that the sole testimony of the victim is sufficient to convict an accused. It is absolutely correct that no self-respecting woman would falsely state that she had been raped”; Sangay Bhutia v. State of Sikkim, 2019 SCC OnLine Sikk 121.
(ii) “Conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the Court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which casts a shadow of doubt over her veracity”; Ramdas v. State of Maharashtra, (2007) 2 SCC 170: AIR 2007 SC 155: 2006 (11) SCALE 340: 2006 (4) Crimes 329.[25]
Allahabad High Court: Suresh Kumar Gupta, J., quoted that
“…in cases involving sexual assault/rape, it is generally difficult to corroborative find any witnesses, except the victim herself and therefore, the evidence of the victim is sufficient for conviction unless there exist compelling reasons for seeking corroboration.”
Dying Declaration
Sub-section (1) of Section 32 of Indian Evidence Act, 1872 provides that when the statement is made by a person as to the cause of his death or as to any circumstances of the transaction which resulted in his death, being relevant fact is admissible in evidence. Such statements are admitted in evidence on the principle of necessity. And are commonly known as dying declarations.
The dying declaration holds significant weight as a crucial piece of evidence, potentially serving as the primary basis for convicting an accused. The key stipulation is that the declarant’s statement must be voluntary and made in a physically sound condition. Once these conditions are met, the dying declaration can be deemed reliable without the need for additional corroboration.[26]
LEGAL PERSPECTIVE AND JUDICIAL TRENDS
°In Abbas Ahmed Choudhary vs Assam[27]
The Supreme Court acknowledged the significance of prioritizing the statement of the prosecutrix in rape cases, emphasizing that while her account must be given primary consideration, the prosecution is still obligated to establish the case beyond reasonable doubt. The court clarified that there should be no automatic presumption of the prosecutrix always providing a truthful narrative. In the Ganesan vs State case, the Supreme Court ruled that a conviction could be based solely on the victim’s testimony if it is deemed trustworthy, unblemished, credible, and of sterling quality.
The Supreme Court emphasized the crucial nature of a victim’s testimony in cases of sexual assault, asserting that unless compelling reasons necessitate corroboration, the courts should confidently rely on the victim’s testimony alone for convicting an accused if it is deemed reliable. The court condemned the practice of routinely seeking corroboration, deeming it insulting in such cases. In a specific case, the court concluded that there was no basis to doubt the credibility or trustworthiness of the prosecutrix. Having found her testimony reliable and trustworthy, the court asserted that the conviction of the accused, based solely on the prosecutrix’s testimony and without additional corroboration, could be sustained. This underscores the court’s commitment to giving due weight to the victim’s account when it is considered credible and reliable.
From the above, it’s evident that the victim’s testimony plays the pivotal and sole role in convicting rapists. When a victim is alive, they serve as a crucial witness, making it imperative for a criminal to eliminate the victim’s body to effectively cover their tracks. In such cases, perpetrators may resort to extreme abuse and torture before disposing of the body. This scenario poses a risk, especially when clever lawyers are involved, as the absence of the victim’s testimony can potentially result in the guilty going unpunished, particularly if they have the means to hire skilled legal representation.
Examining a landmark judgment like the Nirbhaya case underscores the significance of living victims. Nirbhaya and her companion, being alive, could provide testimony crucial for apprehending the main culprits. This case, resulting in death penalties, sets a robust precedent for future convictions and court proceedings, emphasizing the importance of preserving the lives of victims to ensure justice.
CONCLUSION
Punishments for rape vary across different developed or developing countries and are influenced by various legal systems, cultural norms, and societal values. For example, In European countries like France the French are pretty hardcore about their rape laws. They hand out 15 year sentences for rape, which can be extended to 30 or life depending on the extent of damage and brutality, in Asian countries like Japan and China Twenty years to life for sexual assault crimes and death sentence in the case of rape but in some cases Castration respectively and in middle eastern countries like Saudi Arabia which is one of the strictest country when it comes to rape laws the punishment is a public beheading after administering the rapist with a sedative, etc.
Are these laws helpful in removing and making such a heinous crime to completely eradicate from the society in comparison to India answering this is difficult question as comparing the effectiveness or fairness of rape laws across countries is complex and dependent upon each country’s own legal, cultural, and societal factors influencing the codification and execution of such laws.
The problem, however, is same in most of the countries or societies that victims of rape often remain silent in whether it’s China, India, Japan ,Iran or any other country ,the reason is simple, traditional culture holds “being raped a shameful act”. Suffice to say, rape is still a taboo topic in many cultures with victims being rejected by the society which cannot be changed by just changing the laws.
Even though Legislative amendments are one of the most impactful drivers of social change. However, 10 years after the Nirbhaya incident, sexual offences, particularly against women, continue to pose serious challenges. Crime rates against women have significantly increased over the last decade. In particular Delhi, which has consistently been ranked the most unsafe city for women by the National Crime Records Bureau with 13,892 violence against women cases being reported in 2021. [28]
Apparently, This whole debate revolves around whether the death penalty truly addresses the surge in rape cases in India or exacerbates the gravity of the crime, subjecting victims to a more painful and horrifying end. Questioning whether the death penalty serves as a deterrent or reformative punishment, or if it merely aligns with a mob mentality seeking satisfaction through hanging monstrous rapists, raises concerns. Resorting to death sentences based on public sentiments does not offer a solution to the widespread issue of rapes in India. A more rational and justified approach is essential to deliver the justice victims deserve and prevent further occurrences by improving the overall environment and safety conditions.
There is a pressing need for awareness campaigns, not solely to fuel moral outrage but to focus on practical steps to prevent, hinder, and reduce rape incidents. Empowering citizens with tools like hotlines, alerting the police, taking photos, and raising alarms for nearby assistance can make a difference. Sensitizing and motivating the police to take all abuse reports seriously is crucial, challenging the prevalent dismissive attitude. Early education for children about their rights and accessible complaint mechanisms is vital to seeking help.[29]
Society as a whole should focus more on women’s safety and improving the conviction rate in genuine rape cases by significantly improving the level of investigation and evidence gathering is the need of the hour.Instead of succumbing to mob justice, society should embrace more constructive and measured responses.
[1] People v. Turner, H043709 (Cal. Ct. App. Aug. 8, 2018)
[2] People v. Turner https://casetext.com/case/people-v-turner-973/Aug 8, 2018,last visited 26 Dec 2023.
[3] (2020) 17 SCC 69
[4] Case comment : Chaman Lal vs. State of Himachal Pradesh https://blog.ipleaders.in/case-comment-chaman-lal-vs-state-himachal-pradesh/
[5] Barstow, Anne L.. “rape”. Encyclopedia Britannica(6 Oct.
2023)<https://www.britannica.com/topic/rape-crime Accessed 15 October 2023.
[6] The Criminal Law (Amendment) Act, 2013/ Nirbhaya Act.
[7] What is section 375, https://www.business-standard.com/about/what-is-section-375 ( Accessed 26 Dec, 2023)
[8] Corinne J. Saunders, Rape and Ravishment in the Literature of Medieval England, Boydell & Brewer, 2001, p. 20. Pp
[9] Constitution of India 1950,art.21.
[10] Pallavi Prasad ,Rapists Increasingly Killed Their Victims in 2018:NCRB. The Swaddle (Jan 10, 2020) <https://www.theswaddle.com/ncrb-rape-murder-statistics-india Accessed 15 oct 2023.
[11] Rahul Tripathi, Suspects kill women in most rape cases The Economic Times (September 30,2022) <https://m.economictimes.com/news/politics-and-nation/up-records-highest-atrocities-against-sc/sts-and-crimes-against-women/articleshow/78412229.cms Accessed 15 Oct 2023.
[12] nagpurreportednorapecummurderin2021ncrbreport https://www.nagpurtoday.in/nagpur-reported-no-rape-cum-murder-in-2021-ncrb-report/08311134( last visited 26 Dec 2023.
[13] Ibid No.11
[14] nagpurreportednorapecummurderin2021ncrbreport https://www.nagpurtoday.in/nagpur-reported-no-rape-cum-murder-in-2021-ncrb-report/08311134( last visited 26 Dec 2023.
[15] PSA Pillai, Criminal Law (11th Edition, Lexis Nexis Butterworths Wadhwa, Nagpur 2012 )
[16] Ibid No.8
[17] 1983 AIR 465, 1983 SCR (2) 582
[18] [2005] 3 Scc 114;
[19] Confirmation Case No. 2 of 2014
[20] (2017) 6 Supreme Court Cases 1: (2017) 2 Supreme Court Cases (Cri) 673: 2017 SCC Online SC 533
[21] Ibid. No.8
[22] Ibid
[23] Jahanvi Sen Seven Reasons Why We Shouldn’t Demand the Death Penalty for Rape The wire ( 25 Nov 2021) https://m.thewire.in/article/women/rape-death-penalty Accesed 17 oct 2023.
[24] Ibid
[25] The Indian Penal Code 1860, Section 376 Comments (pg no.170)
[26] Shipra Arora, Dying Declaration-Section 32(1) of Indian Evidence Act , https://www.legalservicesindia.com/article/1682/Dying- Declaration-Section-32(1)-of-Indian-Evidence-Act.html last visited 26 Dec 2023.
[27] (2010) 12 SCC 115
[28] 10 years of Nirbhaya case changed India’ s rape laws https://m-timesofindia-com.cdn.ampproject.org/v/s/m.timesofindia.com/india/10-years-on-how-nirbhaya-case-changed-indias-rape- laws/amp_articleshow/96246287.cms?amp_gsa=1&_js_v=a9&usqp=mq331AQIUAKwASCAAgM%3D#amp_tf=From%20%251%24s&aoh=17033582077444&referrer=https%3A%2F%2Fwww.google.com Priyamvadha Shivaji ( Accessed on 23 December 2023).
[29] Sanju Rao ,The real reason why rapist should not be hanged (June 4 2014)https://m.economictimes.com/news/politics-and-nation/the-real-reason-why-rapists-should-not-be-hanged/articleshow/36356724.cms?_gl=1*bztv9d*_ga*YW1wLU5TQ1BYcHhtZjFBd0Y2Ylk0cUJkUzJha25GUk9XSjVQOE56YUpPMDgwQmxxNF9Iek9QWHhtYkFHbU9NSFFXd3c.*_ga_WZ3Z4GGVRC*MTY5NzM2NjkxMC4yLjEuMTY5NzM2ODUxOS41LjAuMA accessed 19 October 2023
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