This article is written by Aditi Singh, from Department of Law, Calcutta University.
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What is Section 376? Relevance of this section with Hathras case
Section 376 is the Rape provision of the Indian Penal Code, 1860. It states the punishment to the person/s who has conducted the act of rape. And Section 375 states that what a rape constitutes of.
After the Nirbhaya case took place, a committee was formed. This committee was The Verma Committee. This committee was supposed to look at- whether harsh punishment for rape cases are available or not and also to look into that what would constitute- gang rape, gang rape for children and thus POCSO (Protection of Children from Sexual Offences Act, 2012) came into effect. It also stated that if a person committing the act of rape and a person just standing beside during another person committing such an act then, both these people will be liable equally.
In the Hathras case, the victim takes two names- Ravi and Sandeep. She states that Sandeep is the person who committed the act while Ravi was just standing. So as already mentioned in the definition of rape by the Verma Committte in Section 376(d), this case is considered to be a Gang Rape case. This section talks about the life term of the abused.
Many women still are not comfortable talking about this issue. And many women advocates also refrain themselves from participating in the discussion of Section 376 and also hesitate to take up such matters. It is difficult to bring justice to the victims dealing with this section.
It is believed that much evidence has not been brought up yet. The case is in a very evolving situation right now. In the month of September when this incident took place she was admitted to the hospital. It seemed that septicemia was developed in the body of the victim. Here the cause of death was unsure but it was also mentioned that the cause of death was septicemia only. There are layers of arguments to argue upon. In the cases of Nirbhaya, the evidence was found very quickly while in this case almost a month has passed now but not much evidence has been recovered. Since the dead body was burnt by putting thinner on the body. But the saddening thing now is that the family of the victim is in trouble due to our inquiring system. Instead of looking for the accused the family is being put into trouble. But still there is hope. Certain laws of our country, the media, and the internet are really active in this case and it can be said that all these things will definitely bring certain change in the status of the case.
What is the meaning and importance of Section 161 and 164 of CrPC in relation to this case?
Section 161 of CrPc is the statement which is recorded in the case diary of the Investigation Officer (IO). In case of rape, this kind of statement is recorded in the presence of magistrate just to ensure that no tampering with the statement is done. It comes handy when the trial happens. In the Supreme Court, Section 161 statements are not usually taken into account.
Section 164 of CrPC is the confession of the case. This statement becomes the holy grail of the trail.
The prosecutrix statement cannot be taken lightly and it has to be considered to be holy gray because it is believed that a woman will never lie about something like rape.
Also, statements under anesthesia are not considered to be a valid one by the law.
What is septicemia?
It is a kind of infection in the body or parts of the body which spreads out in the whole body through bloodstream. And if it is left untreated in any kind of body, either healthy or diseased, it can have a mortality up to 60%.
What is the Viscera report? How is it important in this case?
Viscera report gives the cause of the death. In this case where the victim was sexually assaulted, the Viscera gave an indirect cause of the death. Here the direct cause is the injuries through which the septicemia has spread all over the body, along with this, the report can also state the extent of trauma that has been caused.
For example: In a case where a victim was sexually assaulted, her injuries extended from her vagina to the anal opening as well as the urinal opening and thus this case was regarded as a poly-trauma case. And through Viscera the injuries were found.
The evidence of sepsis, infections can be found through Viscera, and also the cause of such infection.
The most important thing to know in these types of cases is that, the earlier the victims are brought, the more conclusive the doctors can be with the reports of the patient/victim.
Moreover, it is easier to identify the assaulter through the window of secretions. The semen fluid inside the oral mucosa or on the body of the victim can be collected within 2 days, if the body fluid or the semen of assaulter is inside the butthole, it can be collected within 72 hours or if it is inside the vagina, it can be collected up till 7 days. But if the victim has taken a bath these evidences can be altered.
In case of the assault of any male the evidence is collected in the same manner only. Two samples of the swabs are collected from the mouth, nose, butthole opening and skin.
And in the case of transgender the samples are collected in their original gender. That is if, the victim is a transgender male but in originality a female, then the samples are collected in the alignment of the original gender of the victim i.e. female.
Capital punishment by Verma Committee. Views
Capital punishment is given only in the rarest of the rare cases. It was supposed to be a constraint for the public. That if these harsh punishments will be given, cases like rape will not be committed in the society, but the result is not quite satisfying.
In our country the law is not just only providing us support but also some rights. But even though there are still many cases of rapes in the society.
We can see that the victims of the Nirbhaya rape case were hanged this year only but still this case of Hathras took place. Capital punishment clearly hasn’t been deterrent.
The victim family has been facing all the interrogation whereas; the accused hasn’t been summoned yet, they haven’t been facing any interrogation.
So due to these kinds of situations, the direct repercussion is that nobody will approach the judiciary or the police. They will not feel safe to approach for justice.
The Verma Committee wanted just the opposite of it. It wanted that the victim should get so much power that they could directly approach the court without any hesitation but the current situation of our society is exactly the opposite.
What is the response of the judiciary on marital rapes?
The judiciary and the law makers of our country thinks that there is a very thin line determining the fact that whether rape has been occurred or not in the setup of a marriage. Because it is very difficult to establish the facts that rape is committed to a married woman.
There is no strong evidence against marital rapes. In these cases, very suggestive findings are taken into consideration. Like, it is believed that most of women who have been through marital rape has also been through domestic violence. Examining the hymen of a woman, that in which shape the penetration has been done. These findings are again not very strong to prove marital rape.
What is the criminal liability of police in the tampering of the evidence in any case?
Section 201 is used by the police itself to charge the offence of tampering with the evidence. So, it is not sure that the police will use this same section against another policeman. It is a non-bailable offence.
Usually if it comes out that the police have tampered with the evidence then he is suspended and then that suspension goes on the record of the service of the police but after 2-3 years it gets expunged and he will get promotion normally again.
So, in this way it really does not bring any restriction on the police to do such an act.
What advice should be given to the persons who are falsely accused under Section 376 of IPC?
There is plenty of evidence to show that someone is falsely accused under Section 376.
The case dairy which is maintained by the IO is really important in these types of cases. The person falsely accused can definitely take a copy of the case diary. One can have the details of the case from the case dairy and then can cross on all the discrepancies to examine the statements of others to prove his innocence. Because if somebody lies in such a statement then they will never remember their lies exactly as earlier stated and thus it will not match to their initial statements.
What is the responsibility of the media in these types of cases?
The media now has their own agenda. They do not focus on crucial cases but only on the cases where there is more public attention. But the media really should pay more attention to these types of cases as it is the fourth pillar of our democracy. And if the media wants it can bring everyone together.
Also, freedom of press is curtailed. But with the Sudershan TV case which is currently going on in the Supreme Court, there is a possibility that Justice Chandrachud, Justice Indu Malhotra and Justice Thomas will come out with some kind of regulations which may ensure that there is curtailment in terms of things which should not be shown on the television.
What can be done if someone shares with you that they have been sexually assaulted in their childhood?
Typically, a lot of childhood sexual abuse happens in domestic setup, so it is taken care under the Domestic Violence Act. So, if you are a woman, the act of Protection of Women from Domestic Violence Act, 2005, will protect you under any kind of violence under domestic setup. Firstly, it is really important to get the victim’s MLC (Medico legal cases) done. It ascertains that whether a rape has been taken place or not.
Lastly, it is the victim who should come forth and take a stand for herself.
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