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Child as a Victim of Rape
by Dr G. Kameshwari*

Cite as : (2001) 2 SCC (Jour) 27

Rape of a girl child of an immature age has a greater traumatic effect which often persists throughout her life leading to various disorders, both physical and psychological. The effects of rape on the victim are multidimensional. She would be looked down upon by the society including her own family, relatives, friends and neighbours. It would almost be impossible for her to secure a suitable match from a respectable family. Family honour would be at stake leading to uncertainty in respect of the future of her brothers and sisters, if any. Thus rape would almost inevitably and invariably result in mental torture and suffering to the victim. The younger the victim, the greater the repercussions of the offence.

Drastic changes have been made in the law on rape i.e., Section 376 of the Indian Penal Code in 19831. A minimum of 7 years' imprisonment has been imposed as punishment for rape as defined under Section 375, the maximum being imprisonment for life or imprisonment for a term which may extend to 10 years. Imposition of fine is made compulsory. The proviso to sub-section (1) of Section 376 says that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term less than 7 years.

Sub-section (2) of Section 376 enumerates certain aggravated forms of rape like rape by a police officer, a public servant, a member of the management or staff of a jail, remand home or a hospital etc. on a person in custody or care, rape on a pregnant woman, gang rape or rape on a woman below 12 years. The punishment for these aggravated forms is severe. The minimum sentence is 10 years' rigorous imprisonment and maximum is imprisonment for life. Again, the proviso to sub-section (2) says 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 10 years.

Section 327 of the Code of Criminal Procedure, 1973 has been amended directing the inquiry into and trial of rape to be conducted in camera. In the Indian Evidence Act, Section 114-A has been inserted after Section 114 according to which, in a prosecution for rape under Section 376 (2) of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the court may presume that she did not consent.

However, these changes are proving to be inadequate and the social aspects of the matter are not taken care of. In recent times, there has been an increase in violence against women. The conviction rates for rape are still lower than any other major crimes. A rape victim who knocks at the doors of administration of justice is completely broken down by the humiliation she suffers during the investigation and trial of the crime. Court atmosphere and piercing cross-examination by the counsel often cause confusion and nervousness. The provisions of the Evidence Act regarding relevancy of facts and examination of witnesses (especially Sections 148-152) notwithstanding, some defence counsel adopt the strategy of persistent questioning of the prosecutrix regarding the details of rape. She is required to repeat the details again and again to test her story. Cross-examination often results in harassment and humiliation of the victim of rape. Though in-camera trials are prescribed in the trial of rape cases, this is not being followed by the courts resulting in an embarrassment to victims of sex crimes2. Similarly, disclosure of the name of the prosecutrix further mars the reputation of the victims3.

Given the limits of discretion in sentencing by the legislature, the courts have to decide the quantum of punishment to be inflicted in each case. The appellate courts, namely, the High Courts and the Supreme Court have the responsibility of laying down the penal policy guidelines to be followed by the courts below in exercising the discretion. Since the courts have been authorised to award lesser sentence by the legislature, the sentencing pattern presents a varied picture. In practice, in almost every rape case, a less than minimum sentence is awarded. Even if the victim of rape is a child, the attitude of the courts has not been quite different and the following are some startling examples of this attitude:

(a) In Ram Kishan Aggarwala v. State of Orissa4 the accused, a sixty-five year-old businessman of Cuttack, was charged of committing rape on a girl, who was six years of age. The trial court convicted him of rape and sentenced him to 3 years' rigorous imprisonment and Rs 5000 fine. The Sessions Judge, on appeal, upheld the conviction but reduced the sentence to six months' rigorous imprisonment and Rs 500 fine taking into consideration the old age of the convict. The High Court of Orissa and the Supreme Court upheld the conviction and sentence.

(b) In Satto v. State of U.P.5 three boys, between the ages of 10 to 14 years, were convicted of raping an eleven-year-old girl and were sentenced to 2 years' rigorous imprisonment by the trial court. The High Court of U.P. upheld the conviction and sentence of the accused. The Supreme Court ordered the release of the appellants on probation of good conduct and were committed to the care of their respective parents.

(c) In Phul Singh v. State of Haryana6 the accused, a youth of 22 years of age, was charged of committing rape on a deaf and dumb girl of 12-13 years. The trial court convicted the accused of the offence of rape and sentenced him to 4 years' rigorous imprisonment. The High Court affirmed it in appeal. The Supreme Court however reduced the sentence to 2 years' rigorous imprisonment on the ground that the accused was a youth with no criminal antecedents and that he had a young wife and a farm to look after.

(d) In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat7 the accused, a government servant was charged of assaulting two girls aged around 10-12 years. The trial court convicted the accused for offences of wrongful confinement and outraging the modesty of the girls and sentenced him to two-and-a-half years' rigorous imprisonment. The High Court, on appeal, altered the conviction to one under Section 376 read with Section 511 of the Indian Penal Code for attempting to commit rape on the girls. The Supreme Court on appeal however upheld the conviction but altered the sentence to 15 months' rigorous imprisonment for the following reasons-

(i) the appellant lost his job in view of the conviction recorded by the High Court;

(ii) he must have suffered great humiliation in the society;

(iii) the prospects of getting a suitable match for his own daughter have perhaps been marred in the wake of the finding of guilt recorded against him in the context of such offence; and

(iv) the incident occurred some seven years back and about six-and-a-half years elapsed since the dismissal of appeal by the High Court.

(e) In State of Rajasthan v. Ram Narain8 the accused abducted and raped an innocent village girl aged between 15-17 years. The trial court convicted him for the offences of rape, abduction and wrongful confinement and sentenced him to undergo imprisonment for 7 years, 5 years and 1 year respectively and also imposed a fine of Rs 200. On appeal, the High Court confirmed the conviction but reduced the sentence to one-and-a-half months of imprisonment, which he had already undergone on the ground that the accused was just 18 years of age. The Supreme Court on appeal held that the High Court had committed grave error of law in reducing the sentence. The conviction was upheld and the sentence was altered to one of 5 years' rigorous imprisonment under Section 376 of the Indian Penal Code.

(f) In State of Karnataka v. Krishnappa9 the accused, who was a married man of 49 years of age, having his own children was charged with committing rape on an innocent helpless girl of 7\8 years of age. The trial court convicted him for the offence of rape and sentenced him to 10 years' rigorous imprisonment and observed that because of the cruel nature of the act, the accused was not entitled to any leniency. The High Court on appeal, however differed with the reasoning of the trial court in the matter of sentence and reduced it to 4 years' rigorous imprisonment on the ground that the accused was an unsophisticated and illiterate citizen belonging to the weaker section of society; that he was a chronic addict to drinking and had committed rape on the girl while in a state of intoxication and that his family comprising of his old mother, wife and children were dependent upon him. The Supreme Court, on appeal enhanced the sentence of 4 years' rigorous imprisonment to 10 years' rigorous imprisonment and observed that the approach of the High Court was most casual and inappropriate and it exhibited a lack of sensitivity towards the victims of rape and the society by reducing the substantive sentence without good reasons, let alone "special and adequate reasons".

As already discussed, the effects of rape on the victim are multidimensional. The tendency of the courts has been to sympathise with the accused and take notice of the repercussions of the offence on him and his family. The courts, including the Apex Court, do not even try to find out what happened to the victim of the crime and there is no mention of the consequences of the offence on the victim in most of the decisions on rape10. By and large therefore, the approach of the courts towards rapists has been mechanistic and unimaginative. Reasons for confirmation, reduction or enhancement of sentences have been inadequately stated. Application for enhancement of the sentence or appeal on behalf of the State for the purpose are seldom taken up10a. It is no doubt true that deterrence does not come from mechanical increase of punitive severity but from quick investigation, prompt prosecution and urgent finality. But this does not mean that undue leniency be shown to the rapists thereby reducing the confidence of the victims in the criminal justice administration.

It would not be an exaggeration to say that the amount of attention paid to the needs of the crime victim is negligible. Though in the ancient period, compensation to the victim was the main concern of the judicial system, the development of criminal law and the distinction of criminal law from civil law saw virtual exclusion of the victims from the criminal justice process. The victim became the Cinderella of criminal law. The crime victims are not seen as a concern of the welfare as opposed to the penal sector. The victims are the forgotten people of the welfare State; the people, the State has failed to protect, and emotional and material needs of victims are largely ignored. This is the state of affairs world-over and India is no exception. The State does not employ any social workers to look after the victims of crime. It does not set up any rehabilitation centres for disabled victims. The courts do not order adequate compensation to the victims to meet the above needs. The victim's common law right to bring action for damages against an offender is virtually ineffective because of the low detection rate and poverty of many offenders.

A crime victim is devastated by serious crime and is abused by the police and prosecution system. During the trial and after sentencing, the offender has legal aid, he is fed and housed, given physical and psychiatric treatment, job training, education, support for his family and counsel for appeal. In other words, it is the victim, who being a taxpayer, pays for all these benefits for the criminal, and in addition, and by himself has to try to repair all that the crime has destroyed and endure that which cannot be repaired.

A rape victim needs support from all quarters - medical, financial and emotional. In western countries, in the last two-and-a-half decades, steps have been taken to provide medical support through National health services, financial support through Criminal injuries compensation Board and Victim support schemes and emotional support through Rape crisis centres. In India, however, the State has not initiated any steps towards providing medical and emotional support services to the child rape victims. So far as financial support is concerned, there is a provision in the Code of Criminal Procedure to provide compensation to the victims of crime from the fines payable by the offender. In Delhi Domestic Working Women's Forum v. Union of India11 the Supreme Court recognised the right of the victim to compensation including interim compensation and directed the Government to formulate a scheme for setting up a Board for granting compensation to crime victims. But so far, no positive steps have been taken by the Government towards setting up such Boards. Thus, the response of the State to the needs of the rape victims in general and child rape victims in particular, is inadequate and the manner in which the agencies such as the police and the courts handle such victims further victimises them.

To combat the menace of child rape, the following steps are suggested:

1. Instead of dealing with rape of a child like the rape of an adult female, a separate section may be inserted in the Indian Penal Code punishing any type of sexual abuse of a female child below 14 years of age, whether it is rape, attempt to rape or sexual assault with an intent to outrage or insult the modesty of a female child. A minimum sentence may be prescribed without giving any discretion to the courts to award a lesser sentence below the minimum.

2. The rules of evidence and the procedure have to be simplified and a time-limit has to be set for deciding these cases at the trial and appellate stages.

3. These cases have to be investigated, inquired into and tried by victim-oriented female personnel and the trial has to be held in-camera. The victim has to be kept informed of the status of investigation and trial.

4. The impact of the crime on the victim has to be taken into consideration by the court while awarding compensation to the victims.

5. State-sponsored Victim Support Schemes have to be set up to play an active role as a representative, advocate or advisor of the victim. Centres manned with trained counsellors have to be set up to provide services for rape victims, the most important of which is to provide a place where these girls, who have been raped or sexually assaulted can talk with other women. In order to do this, these centres have to provide emotional support, accept the account given to them unquestioningly, give counselling and provide the girls with help in dealing with any official agencies such as police or medical services.

6. Last but not the least, the attitude of the society, especially of the women should undergo a radical change. Sexual assault including rape should be treated like any other bodily hurt and the social practice of stigmatising a victim of sexual offence should go. Systematic training in self-defence should be given to young girls so as to encourage them to resist attacks on them.

As the problem of sexual exploitation of a girl child is multidimensional, it has to be tackled from all directions so as to ensure a secure childhood to every female child.

*   Asstt. Professor, University College of Law, Osmania University, Hyderabad. Return to Text

  1. See Criminal Law (amendment) Act, 1983 which amended the provisions in the Indian Penal Code, CrPC and the Indian Evidence Act. Return to Text
  2. See State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 : 1996 SCC (Cri) 316 at SCC para 24, p. 404 for the observations made by the Supreme Court in this regard. Return to Text
  3. See Jaharlal Das v. State of Orissa, (1991) 3 SCC 27 : 1991 SCC (Cri) 527, State of Maharashtra v. Chandraprakash Kewalchand Jain,(1990) 1 SCC 550 : 1990 SCC (Cri) 210, State of Haryana v. Prem Chand, (1990) 1 SCC 249 : 1990 SCC (Cri) 93, Prithi Chand v. State of H.P., (1989) 1 SCC 432 : 1989 SCC (Cri) 206. These are but few examples of cases wherein the details of the victim are disclosed. See also supra fn 2 for Supreme Court's observation on this point. Return to Text
  4. (1976) 2 SCC 177 : 1976 SCC (Cri) 244 Return to Text
  5. (1979) 2 SCC 628 : 1979 SCC (Cri) 534 Return to Text
  6. (1979) 4 SCC 413 : 1980 SCC (Cri) 1 Return to Text
  7. (1983) 3 SCC 217 : 1983 SCC (Cri) 728 Return to Text
  8. (1996) 8 SCC 64 : 1996 SCC (Cri) 529 Return to Text
  9. (2000) 4 SCC 75 : 2000 SCC (Cri) 755 : See also State of A.P. v. Palamala Raju, (2000) 7 SCC 75 : 2000 SCC (Cri) 1284, where the S.C. enhanced the sentence of 5 years' RI as imposed by the High Court to 10 years' RI for the rape of a child aged 5 years. Return to Text
  10. Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204 : 1992 SCC (Cri) 598 is one of the very few cases wherein, the Apex Court tried to find out the consequences of the offence on the victim. Return to Text
  11. a In T.K. Gopal v. State of Karnataka, (2000) 6 SCC 168 : 2000 SCC (Cri.) 1037, notice was issued to the accused to show cause why the sentence of 10 years' RI should not be enhanced to life imprisonment. However, having regard to the extenuating circumstances, specially the fact that the accused's two daughters have come of age and are to be married, the Supreme Court held that enhancement of sentence is not called for. Return to Text
  12. (1995) 1 SCC 14 : 1995 SCC (Cri) 7 Return to Text
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