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LAW COMMISSION OF INDIA
ONE HUNDRED AND SEVENTY SECOND REPORT
ON
REVIEW OF RAPE LAWS MARCH, 2000
D.O.No.6(3)(36)/2000_LC(LS)
March 25, 2000
Dear Shri Jethmalaniji,
I am forwarding herewith the 172nd Report on Review of Rape Laws.
2. In Writ Petition (Crl.) No.33 of 1997, the petitioner, “Sakshi” an organisation interested in the issues concerning women, approached the Supreme Court of India inter alia for directions concerning the definition of the expression “sexual intercourse” as contained in section 375 of the Indian Penal Code.
3. The Supreme Court by its order dated 13th January, 1998 directed the Law Commission to indicate its response with respect to the issues raised in the above writ petition. The Commission filed an affidavit dated 28.7.1998 setting out in extenso the portions of its 156th Report on the Indian Penal Code dealing with the issues in question. In the said Report, the then Law Commission (14th Law Commission) did not agree with the viewpoint of the writ petitioners except in certain minor respects. The Supreme Court was inclined to agree with the submissions of the writ petitioners that the contents of the 156th Report did not deal with the precise issues raised in the writ petition.
4. On the directions of the Hon’ble Court, the petitioner drew up a note containing the precise issues involved in the petition. The Commission was asked by the Hon’ble Court by its order dated 9th August, 1999 to examine the said issues afresh. The Court observed that the isses needed a thorough examination. By the said order dated 9th August, 1999, the Hon’ble Court requested the Law Commission “to examine the issues submitted by the petitioners and examine the feasibility of making recommendations for amendment of the Indian Penal Code or deal with the same in any other manner so as to plug the loopholes”.
5. A copy of the draft of comments prepared by the Law Commission was thereafter forwarded to Sakshi inviting their views thereon and for suggesting changes of a procedural nature, whether in the Criminal Procedure Code or the Evidence Act. Later on, three other organisations, namely, Interventions for Support, Healing and Awareness – IFSHA, All India Democratic Women’s Association – AIDWA and the National Commission for Women – NCW also presented their views on the proposed suggestions.
6. After detailed discussions with these organisations, the Commission has recommended changes for widening the scope of the offence in section 375 and to make it gender neutral. Various other changes have been recommended in sections 376, 376A to 376D. We have also recommended insertion of a new section 376F dealing with unlawful sexual contact, deletion of section 377 of the IPC and enhancement of punishment in section 509 of the IPC. In order to plug the loopholes in procedural provisions, we have also recommended various changes in the Code of Criminal Procedure, 1973 and in the Evidence Act, 1872.
7. The Hon’ble Supreme Court forwarded vide its order dated 18.2.2000 the comments of the petitioner on the Response and Recommendations of the Law Commission of India for consideration. The Commission accordingly considered those comments and submitted its further resposne and recommendations dated 14.3.2000.
8. The present Report focuses on the need to review the rape laws in the light of increased incidents of custodial rape and crime of sexual abuse against youngsters. The crime of sexual assault on a child causes lasting psychic damage to the child and as such, it is essential to prevent sexual abuse of children through stringent provisions. The UN Conventions and various constitutional provisions also underline the need for protecting the child from all forms of sexual exploitation and sexual abuse. This Report aims at the attainment of these objectives.
With regards,
Yours sincerely,
(B.P.JEEVAN REDDY)
Shri
Ram Jethmalani,
Minister for Law, Justice & Co.Affairs,
Government of India,
Shastri Bhavan,
New Delhi.
INDEX
CHAPTER ONE
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Introduction
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CHAPTER TWO
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Views invited on proposed provisions
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CHAPTER THREE
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Changes recommended in the Indian Penal Code, 1860
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CHAPTER FOUR
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Changes recommended in the Code of Criminal Procedure, 1973
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CHAPTER FIVE
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Changes recommended in the Evidence Act, 1872
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CHAPTER SIX
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Miscellaneous suggestions of the "Sakshi"
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CHAPTER SEVEN
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Conclusion
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Annexure-A Affidavit filed by Sakshi
dated 03.08.1999
Annexure-B Amended draft on the relevant
sections of IPC by the Law
Commission, forwarded to
Sakshi on 27.8.99 for
discussion
Annexure-C Copy of handout given by
Sakshi
Annexure-D Copy of suggestions by Sakshi,
IFSHA and AIDWA dated 13.9.99
Annexure-E Copy of suggestions by
National Commission for
Women dated 17.9.99 and letter
No.JS/NCW/LC/Network/99
dated 14.10.99
Annexure-F Extract of section 409B of
the Crimes Act, 1900 (New
South Wales) and
recommendations of the New
South Wales Law Commission
pertaining to it made in its
Report 87 on Review of section
409B of the Crimes Act 1900
(NSW) (Nov.1998)
CHAPTER ONE
Introduction
1.1. Under an order dated August 9, 1999 made in Writ
Petition (Crl) No.33 of 1997, the Supreme Court of India
requested the Law Commission "to examine the issues raised
by the petitioners and examine the feasibility of making
recommendations for amendment of the Indian Penal Code or
deal with the same in any other manner so as to plug the
loopholes."
1.1.1. The petitioner `Sakshi', an organisation
interested in the issues concerning women, had approached
the Supreme Court of India with the aforesaid Writ
Petition praying for (a) issuance of a writ in the nature
of a declaration or any other appropriate writ or
direction declaring inter alia that `sexual intercourse'
as contained in section 375 of the Indian Penal Code shall
include all forms of penetration such as penile/vaginal
penetration, penile/oral penetration, penile/anal
penetration, finger/vaginal and finger/anal penetration
and object/vaginal penetration and (b) to issue a
consequential writ, order or direction to the respondents
in the Writ Petition and to their servants and agents to
register all such cases found to be true on investigation.
1.1.2. The Law Commission was not made a party to the
Writ Petition. The Supreme Court however directed the Law
Commission, by its Order dated 13th January, 1998, to
indicate its response with respect to the issues raised in
the said Writ Petition. The Law Commission in its
affidavit dated 25.3.1998 brought to the notice of the
Hon'ble Court that the 156th Report of the Law Commission
on the Indian Penal Code had dealt, inter alia, with the
issues raised in the Writ Petition, but since the said
Report was not yet placed on the table of the Houses of
Parliament, the matter may be adjourned by a few months.
The matter was adjourned by three months. Meanwhile, the
aforesaid Report of the Law Commission was placed on the
table of both the Houses of Parliament. Thereafter, the
Law Commission filed its affidavit dated 28.7.98 setting
out in extenso the portions of the said Report dealing
with the issues in question. Suffice it to say that by
and large the then Law Commission (14th Law Commission)
did not agree with the viewpoint of the writ petitioners
except in certain minor respects which would be indicated
at the appropriate stage later. It is after considering
the said affidavit and the affidavit filed by the Ministry
of Law, Justice and Company Affairs, that the Hon'ble
Court passed the aforesaid order dated 9th August, 1999.
1.1.3. The order of the Hon'ble Court records the
statement of the learned counsel for the writ petitioners
that the contents of the 156th Report of the Law
Commission were known to the petitioners, but since
according to them the Report did not deal with the precise
issues raised in the writ petition, a request was made by
the counsel for the petitioner to seek further
consideration of the issues by the Law Commission and the
Government of India. The Court was inclined to agree with
the said submissions. The Court also noted that the 156th
Report was submitted by the Law Commission prior to these
issues being referred to the Commission and further that
the said Report of the Law Commission did not in terms
deal with various aspects of the issues raised in the Writ
Petition. The order further recorded that at the
suggestion of the Hon'ble Court, the petitioner did draw
up a note containing the precise issues involved in the
Writ Petition as well as other connected issues. After
perusing the same, the Court asked the Law Commission to
examine the said issues afresh. A copy of the `precise
issues' with the appendix and affidavit were sent to the
Secretary, Law Commission with a request to place the same
before the Chairman of the Law Commission for
consideration. It was also observed that the Law
Commission may, if so advised, call upon the petitioner to
assist it in such manner as the Commission thought
appropriate. The issues, the Court observed, "need a
thorough examination". The matter was accordingly
adjourned for three months within which period the Law
Commission was expected to submit its response to the
Hon'ble Court.
1.1.4. The order of the Hon'ble Court was received by the
Secretary to the Law Commission on 19.8.99 and placed
before the Chairman.
1.2. "Precise issues".- The `precise issues' submitted
by the petitioner before the Court and which have been
sent to the Law Commission for consideration are divided
into three parts (Annexure-A). Part I carries the title
"Precise issues submitted for consideration of the Law
Commission and the Government of India". Part II carries
the heading "Existing inadequacies" and Part III is titled
"Suggestions for amendment to the Indian Penal Code". We
shall set out in brief the substance of the submissions
made in all the three parts.
1.2.1. Part I: Precise issues submitted for consideration
of the Law Commission and the Government of India.- (1)
Having regard to the widespread prevalence of child sexual
abuse, would it not be appropriate to include all forms of
penetration such as penile/vaginal penetration,
penile/oral penetration, penile/anal penetration,
finger/vagina and finger/anal penetration and
object/vaginal penetration within the meaning of the
expression "penetration" in the Explanation to section 375
of the IPC. The restrictive interpretation of
`penetration' in the Explanation to section 375 defeats
the very purpose and object underlying section 376(2)(f);
(2) Is it not wrong to classify the penetrative abuse
of a child below the age of 12 as unnatural offence under
section 377 IPC or as outraging the modesty of a woman
under section 354, depending upon the `type' of
penetration ignoring the `impact' on such child.
(3) Is it not wrong to continue to treat
non-consensual penetration upon such a child as offence
under section 377 IPC on par with certain forms of
consensual penetration (e.g. consensual homosexual sex)
where consenting party can be held liable as an abettor or
otherwise.
1.2.2. `Appendix A' appended to Part I contains three
notes, which we shall refer to in seriatum:
Note 1: The Explanation to sections 375 and 376 says that
"penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape". By the
Criminal Law (Amendment) Act 1983, raping of a woman under
twelve years of age was made punishable with rigorous
imprisonment for a term which shall not be less than ten
years but which may be for life in addition to fine. In
such a situation, it would be appropriate to broaden the
meaning of penetration to include not only vaginal
penetration but also anal and oral penetration as well as
penetration by any part of the body or by any object.
Note 2: In a vast majority of child sexual abuse cases the
penetration is other than penile-vaginal. Such
penetration causes lasting psychic damage to the child.
In such a situation, a restrictive meaning attached to
penetration is likely to prove inadequate.
Note 3(a): The 156th Report of the Law Commission has
recommended that penile/oral penetration and penile/anal
penetration be covered by section 377 IPC and that finger
penetration and object penetration into vagina or anus can
be adequately covered under section 354 with a more severe
punishment. This recommendation requires reconsideration.
Such a restrictive view fails to take into consideration
several forms of child abuse and the further fact that
very often the sexual abuse of children is by persons
known to them. As a matter of fact, rape is really
intended to humiliate, violate or degrade a woman
sexually. It adversely affects the sexual integrity and
autonomy of women and children. The aforesaid
recommendation of the Law Commission therefore defeats the
very object underlying the Criminal Law (Amendment) Act,
1983 which inserted sub-section (2) and in particular
clause (f) thereof in section 376. The above
recommendation also does not take into account the fact
that a child of tender years can not discern the degree of
difference in terms of which orifice of hers is
penetrated. Certain instances are then set out to
illustrate the aforesaid point.
Note 3(b): Under this note, the petitioner has sought
to argue in the light of the instances mentioned under
Note 3(a) that the 156th Report of the Law Commission
requires reconsideration.
1.3. Part II: Existing Inadequacies.- Various
instances set out in Appendix-B to Annexure-A (a copy of
the submissions of Sakshi including Appendix-B is enclosed
herewith) to this part, the petitioner argues, would not
amount to rape and perhaps not even to natural offence
under section 377 or to outraging the modesty of a woman
under section 354, in view of the existing law. They
might just be a limited form of assault or criminal force,
if at all, though all the said instances are of a grave
nature and extremely disturbing. It is therefore
necessary that there should be a rethinking on this issue
and the offence of `sexual assault' should be more
precisely defined and its parameters indicated.
1.4. Part III: Suggestions for amendment to
Indian Penal Code.- This part sets out the several
amendments proposed by the petitioner. Suffice it to say
that they seek to substitute the definition of `rape' with
the definition of `sexual assault' and make it gender
neutral. The object is to widen the scope of the offence.
The expression `consent' is also sought to be defined. A
new section, section 375A with the heading `Aggravated
sexual assault' is sought to be created. This new offence
seeks to synthesise the offences now categorised under
sub-section (2) of section 376 as well as sections 376B to
376D.
CHAPTER TWO
VIEWS INVITED ON PROPOSED PROVISIONS
2.1. UN Convention and Constitutional
provisions.Several cases of child abuse have all over the
world have caused grave concern to the humanity. Article
34 of the Convention on Rights of the Child (20 November
1989) ordains the Member States to protect the child from
all forms of sexual exploitation and sexual abuse. For
these purposes, State Parties are required to take all
appropriate national, bilateral and multilateral measures
to prevent:
(a) The inducement or coercion of a child to
engage in any unlawful sexual activity;
(b) The exploitative use of children in
prostitution or other unlawful sexual practices;
(c) The exploitative use of children in
pornographic performances and materials.
2.1.1. Article 39(f) of the Constitution of India, one of
the Directive Principles of State Policy requires the
State to direct its policy, inter alia, towards securing
that childhood and youth are protected against
exploitation and against moral and material abandonment.
There is, therefore, great need for tightening the
existing provisions relating to child sexual abuse or
assault.
2.2. Draft of the Law Commission's proposals.- On a
consideration of the `precise issues' submitted by the
petitioner and in the light of the order of the Hon'ble
Court and also taking into account the laws in force in
certain western countries on this subject, the Law
Commission prepared a draft (Annexure-B) containing the
proposed new sections, namely, sections 375, 376, 376A,
376B, 376C, 376D in substitution of the existing sections
375 to 376D and also suggested a new section, section
376E. The purport of these new sections is to substitute
the offence of `rape' under section 375 with the offence
of `sexual assault' by including all kinds of penetration
in the vagina, anus or urethra of another, whether by a
part of the human body or by an object. Section 376 is,
accordingly, modified in the light of the change in
section 375. Sections 376A, 376B, 376C and 376D are
retained substantially except adapting them to the changes
made in the offence under section 375 and a few changes in
the matter of punishment. A new offence, namely, section
376E with the title `unlawful sexual contact' is sought to
be created. Besides the above, section 377 is proposed to
be deleted as unnecessary in the light of the preceding
provisions. Section 509 of IPC is also sought to be
amended providing higher punishment where the offence set
out in the said section is committed with sexual intent.
2.2.1. Views invited.- A copy of the said draft was
forwarded to Sakshi on 27.8.99 and they were invited for a
discussion on 13.9.99. It was indicated that the
discussion would not only be with respect to the draft
prepared by the Law Commission but that they shall be free
to put forward their other suggestions and ideas, if any,
and further they could also bring representations of other
women's organisations, along with them, for discussion.
Accordingly, three persons, namely, Ms Naina Kapur
(Director, Sakshi), Ms Jasjit Purewal (Director,
Interventions for Support, Healing and Awareness - IFSHA)
and Ms Kirti Singh (All India Democratic Women's
Association - AIDWA) participated in the discussion, on
behalf of their respective organisations. All the three
organisations have also put forward their suggestions in
writing - apart from what Sakshi had filed before the
Supreme Court.
We may mention that hereafter whenever we speak of
or refer to Sakshi, it means not only the Sakshi, but also
the two other women's organisations, namely IFSHA
(Interventions for Support, Healing and Awareness) and
AIDWA (All India Democratic Women's Association) as well
as the National Commission for Women (NCW), who were also
heard on the proposals contained herein.
2.3. Views of the "Sakshi" on the IPC provisions.- On
the first day of hearing (13.9.99), the said three persons
expressed their appreciation of the draft prepared by the
Law Commission stating that it was a substantial advance
on the subject and met many of their ideas. Even so,
after a good amount of discussion, they came forward with
the following changes in the said draft:
(a) The age of the person assaulted - referred to in
clause "sixthly" in section 375 and in Explanation (2) to
section 375 and in section 376(1) (where the age of the
wife is referred to) - should be raised to sixteen.
Raising the said age to eighteen may not be appropriate.
(b) A provision must be inserted to the effect that if
the person assaulted gives his/her age, the court shall
presume it to be so. A provision on the lines of section
114A of the Evidence Act be suggested.
(c) In the definition of sexual assault in section
375, there should be an explanation saying that
penetration shall mean penetration to any extent
whatsoever, inasmuch the penetration is never complete in
the case of children.
(d) Explanation (2) to draft section 375 (which says
that sexual intercourse by a man with his own wife, the
wife not being under 15 years of age, does not amount to
sexual assault) should be deleted. Forced sexual
intercourse by a husband with his wife should equally be
treated as an offence just as any physical violence by a
husband against the wife is treated as an offence.
Following the same logic, they submitted that the words
"unless the person subjected to sexual assault is his own
wife and is not under 15 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" in section 376(1) of the Law Commission's draft
[adaptation of the existing section 376(1)] should also be
deleted. Section 376A should also be deleted, they said,
on the same reasoning.
(e) In the first proviso to draft section 376(1) (in
the draft of the Commission), the words "the father,
grandfather or brother" should be substituted with the
words "a person holding position of trust vis-a-vis the
other person" and further to add an explanation saying
that the said expression shall include father/step father,
brother/step brother, teacher, instructor, guardian and
the like.
(f) Consent should be defined to mean "unequivocal
voluntary agreement".
2.3.1. A copy of the handout given by the persons
mentioned in paragraph 2.2.1, supra of this chapter, on
the first date of meeting is placed at Annexure-C.
2.4. Views of the "Sakshi" on the relevant provisions
of the Code of Criminal Procedure and the Indian Evidence
Act.- At the end of the discussion on the first day, it
was indicated to the persons mentioned in para above that
if they wished to suggest any changes of a procedural
nature, whether in the Criminal Procedure Code or in the
Evidence Act, they could send the same by the next date,
which was specified as 17th September 1999. Though the
"precise issues" did not speak of any changes in the
procedural laws (and was confined to amendments to Indian
Penal Code only), we were of the opinion that unless
certain changes are effected simultaneously in the
relevant provisions of the CrPC and Evidence Act, the
purpose underlying the changes in the substantive law IPC
- may not be fully served. It is for this reason that we
suggested to Sakshi to come forward with their
suggestions, if any, for amendment of procedural laws to
achieve the purpose underlying changes in substantive
laws. Accordingly, they came forward with as many as 14
suggestions proposing amendments not only in the Criminal
Procedure Code and Evidence Act but also in the Indian
Penal Code (Annexure-D). The procedural amendments
suggested by them are to the following effect:
(1) The 84th Report of the Law Commission had
suggested that where the statement of a girl-victim below
twelve years of age is recorded, it should be done by a
woman police officer or by a woman belonging to an
organisation interested in the cause of women or children.
The said recommendation should be accepted with certain
changes set out in their note.
(2) The present proviso to sub-section (1) of section
160 of the Code of Criminal Procedure should be
substituted by the following proviso:
"Provided that no male person under the age of
sixteen years or a woman shall be required to
attend at any place other than his or her home or
place of his or her choice."
(3) A new sub-section, namely, sub-section (6) should
be inserted in section 160 CrPC to the effect that the
statement of a male person under the age of sixteen years
or a female, during the course of investigation, should be
recorded only in the presence of a relative, a friend or a
social worker of the person's choice.
(4) A new section, namely, section 164A should be
inserted in the Code of Criminal Procedure stating that as
soon as a case of sexual assault is reported to a Police
person, he shall have the person (allegedly assaulted
sexually) examined medically by a registered medical
practitioner and that such medical practitioner shall
after due examination, prepare a report setting out the
various specified particulars. This proposal is a slight
modification of the recommendation contained in the 84th
Report of the Law Commission.
(5) Sub-sections (1A), (1B), (1C) and (1D) should be
inserted in section 53 of the Criminal Procedure Code as
recommended by the 84th Report of the Law Commission, with
necessary adaptations.
(6) While granting bail to a person accused of sexual
assault, one of the conditions which should be imposed by
the court shall be that such person shall not be in the
proximity of the person assaulted.
(7) In the case of sexual assault, there shall be no
interference with or disturbance of the natural habitat of
the person sexually assaulted by or through the criminal
justice process.
(8) The investigation and trial of sexual offences
should be time-bound and should be concluded within six
months.
(9) The expression `social worker' shall be defined to
mean a woman interested in or working for the cause of
women and/or children and who is familiar with issues of
violence against women and children.
(10)(a) A new section 114B should be introduced in the
Evidence Act stating that where in a prosecution for
aggravated sexual assault under sections 376A to 376D of
the IPC, the question is whether the person so assaulted
consented to it and where such person states before the
court that he/she did not so consent, the court shall
presume it to be so.
(b) Clause (4) in section 155 to the Evidence Act
(which permits the person accused of rape or attempt to
ravish to prove that the prosecutrix was of generally
immoral character) should be deleted.
(c) In section 146 of the Evidence Act, another
clause, namely, clause (4) should be added stating
expressly that in a prosecution for sexual assault, it
shall not be permissible to adduce evidence or to put
questions in cross-examination of the person assaulted
with respect to his/her previous sexual history, character
or conduct whether to establish consent or otherwise.
(d) The absence of a medical report in the case of a
sexual assault shall not be a factor against the
complainant/person assaulted.
(11) There should be a provision either in the CrPC or
in the Evidence Act to the effect that a minor who has
been assaulted sexually, should not be required to give
his/her evidence in the presence of the accused as it will
certainly traumatise the minor. Steps should also be
taken to provide an appropriate and safe environment in
which the child can recover.
(12) The testimony of a child who is subjected to
sexual assault should be recorded at the earliest
opportunity by a judge/magistrate in the presence of a
friend, relative or social worker whom the minor trusts.
For a proper implementation of the above suggestion,
videotape/circuit television should be provided. Further,
where the child is to be cross-examined, the questions
shall be handed over to the judge who shall in turn put
those questions to the minor. While recording the
evidence of the minor, appropriate breaks should also be
given to make the minor feel comfortable.
(13) All cases of sexual assault should be tried by
special courts which shall be manned by judges,
prosecutors and counsellors, `specially trained/sensitised
to issues of sexual assault'.
(14) A new offence should be created by appropriately
amending section 166 IPC making it an offence for a public
servant to disobey the direction of law prohibiting the
summoning of a minor/woman at any place other than her
place of choice and also a public servant who disobeys any
direction of law with respect to the manner in which the
investigation concerning a minor shall be conducted.
2.4.1. Discussion on the suggestions of "Sakshi".- Each
of the above suggestions were discussed in the Commission
in the presence of the three persons representing organi-
sations mentioned in para 2.2.1 above,in the light of the
84th Report of the Law Commission as well as the 154th
Report of the Law Commission. While we agree with some of
the aforesaid suggestions (as would be evident from the
recommendations set out in the succeding chapters), we
find ourselves unable to agree with all of them.
2.5. Views of the National Commission for Women (NCW)
invited.- The Law Commission would also wish to put on
record that before finalising their recommendations, the
Law Commission had also sent a letter to the National
Commission for Women (NCW) enclosing the aforementioned
draft (prepared by the Law Commission) (Annexure-B) and
inviting them to come and have a discussion with the Law
Commission on 16.9.99. The National Commission for Women
deputed their Joint Secretary, Ms Leena Mehendale. One of
the Members of the Law Commission, Mrs Justice Leila Seth,
heard the Joint Secretary and also asked her to put her
ideas/suggestions in writing. Accordingly, the NCW sent a
set of suggestions in writing signed by the Joint
Secretary. A copy of the said proposals is appended
herewith (Annexure-E).
CHAPTER THREE
Changes recommended in the Indian Penal Code, 1860
3.1. Substitution of definition of `rape' by definition
of `sexual assault'.
Not only women but young boys, are being
increasingly subjected to forced sexual assaults. Forced
sexual assault causes no less trauma and psychological
damage to a boy than to a girl subjected to such offence.
Boys and girls both are being subjected to oral sexual
intercourse too. According to some social activists like
Ms Sheela Barse, both young girls and boys are being
regularly used for all kinds of sexual acts and sexual
perversions in certain tourist centres like Goa - mainly
for edification of the foreign tourists. Sakshi have also
recommended for widening the scope of the offence in
section 375 and to make it gender neutral. Some of the
Western countries have already done this. It is also
necessary to include under this new definition (sexual
assault) not only penile penetration but also penetration
by any other part of the body (like finger or toe) or by
any other object. Explanation to section 375 has also
been substituted by us to say that penetration to any
extent whatsoever shall be deemed to be penetration for
the purpose of this section. This is so provided for the
reason that in the case of children, penetration is rarely
complete - for physical reasons. So far as the Exception
is concerned, we have retained the existing Exception the
only change made being in the matter of age; we have
raised the age of the `wife' from fifteen to sixteen. The
age of the person assaulted sexually referred to in the
clause "sixthly" has also been raised to sixteen from
fifteen.
3.1.1. We may also mention that in redrafting the
section, we have stuck to the existing provision as far as
possible. This is for the reason that since these
provisions have already been interpreted and elucidated by
the decisions of the courts, it is better to stick to them
rather than use new expressions and new wording. In
drafting clauses (a) to (e) in section 375, we have drawn
inspiration from the Criminal Law Western Australia.
3.1.2. Substitution of existing section 375 of the IPC
recommended.- We accordingly recommend that the existing
section 375 be substituted by the following:
"375. Sexual Assault: Sexual assault means -
(a) penetrating the vagina (which term shall include
the labia majora), the anus or urethra of any
person with -
i) any part of the body of another person or
ii) an object manipulated by another person
except where such penetration is carried out for
proper hygienic or medical purposes;
(b) manipulating any part of the body of another
person so as to cause penetration of the vagina
(which term shall include the labia majora), the
anus or the urethra of the offender by any part of
the other person's body;
(c) introducing any part of the penis of a person into
the mouth of another person;
(d) engaging in cunnilingus or fellatio; or
(e) continuing sexual assault as defined in clauses
(a) to (d) above
in circumstances falling under any of the six
following descriptions:
First- Against the other person's will.
Secondly- Without the other person's consent.
Thirdly- With the other person's consent when such
consent has been obtained by putting such other person or
any person in whom such other person is interested, in
fear of death or hurt.
Fourthly- Where the other person is a female, with
her consent, when the man knows that he is not the husband
of such other person and that her consent is given because
she believes that the offender is another man to whom she
is or believes herself to be lawfully married.
Fifthly- With the consent of the other person,
when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration
by the offender personally or through another of any
stupefying or unwholesome substance, the other person is
unable to understand the nature and consequences of that
to which such other person gives consent.
Sixthly- With or without the other person's
consent, when such other person is under sixteen years of
age.
Explanation: Penetration to any extent is penetration for
the purposes of this section.
Exception: Sexual intercourse by a man with his own wife,
the wife not being under sixteen years of age, is not
sexual assault."
3.1.2.1. Representatives of Sakshi wanted us to
recommend the deletion of the Exception, with which we are
unable to agree. Their reasoning runs thus: where a
husband causes some physical injury to his wife, he is
punishable under the appropriate offence and the fact that
he is the husband of the victim is not an extenuating
circumstance recognized by law; if so, there is no reason
why concession should be made in the matter of offence of
rape/sexual assault where the wife happens to be above
15/16 years. We are not satisfied that this Exception
should be recommended to be deleted since that may amount
to excessive interference with the marital relationship.
3.2. Modification of S.376.- So far as the proposed
section 376 is concerned, we are not suggesting any
substantial changes except two and adapting the language
of the section to accord with the change in section 375.
In the light of instances coming before the courts and the
instances mentioned in the Note prepared by Sakshi, we
have proposed addition of a proviso to sub-section (1)
(while treating the existing proviso as the second
proviso) providing that where the sexual assault is
committed by the father, grandfather or brother, the
punishment should be severe. On the basis of suggestions
made by Sakshi, we have also added the words "or any other
person being in a position of trust or authority towards
the other person" after the words "father, grandfather or
brother". The second change suggested by us is in the
matter of the age of wife referred to in proposed
sub-section (1) as also of the person assaulted in clause
(f) of sub-section (2). The age "fifteen" is raised to
"sixteen".
3.2.1. The reasons for these changes are: (1) to visit
with a severe penalty the near relations and persons in
position of trust and authority who more often than not
commit the offence of sexual assault on the members of the
family or on unsuspecting and trusting young persons. We
have in this connection taken note of the extremely odious
and debased conduct of the father of the minor girl in the
facts highlighted in Sudesh Jakhoo v. K.C.J. and others
[1996 (3) AD Delhi 653 = (1996) 62 DLT 563] and (2) to
maintain uniformity in the matter of age of wife or any
other young person who needs special protection - as
sixteen.
3.2.2. Views of "Sakshi" considered.- Though the
representatives of Sakshi have suggested that we should
delete the second proviso to section 376 (1) and the
proviso to section 376 (2) (which confer a discretion upon
the court to award a sentence lesser than the minimum
punishment prescribed by the sub-sections), we are not
satisfied that there are any good reasons for doing so.
Any number of situations may arise, which it is not
possible to foresee, and which may necessitate the
awarding of lesser punishment than the minimum punishment
prescribed. Safeguard against abuse is provided by
requiring that adequate and special reasons be mentioned
in the judgment, for awarding such lesser punishment. Nor
is there justification in the criticism that such
discretion once conferred is liable to be abused or that
it will always be misused to help the accused.
3.2.3. Recasting of section 376 of the IPC recommended.-
Accordingly, we recommend that section 376 shall be
re-cast as follows: -
"376. Punishment for sexual assault - (1) Whoever,
except in the cases provided for by sub-section (2),
commits sexual assault 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 person subjected to sexual assault is his
own wife and is not under sixteen years of age, in which
case, he shall be punished with imprisonment of either
description for a term which may extend to three years and
shall also be liable to fine.
If the sexual assault is committed by a person in
a position of trust or authority towards the person
assaulted or by a near relative of the person assaulted,
he/she shall be punished with rigorous imprisonment for a
term which shall not be less than ten years but which may
extend to life imprisonment 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 for a term of less than minimum
punishment prescribed in this sub-section.
(2) Whoever,-
(a) being a police officer commits sexual assault-
(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 person in his custody or in the custody
of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his
official position and commits sexual assault on a person
in his custody as such public servant or in the custody of
a public servant subordinate to him; or
(c) being on the management or on the staff of a
jail, remand home or other place of custody established by
or under any law for the time being in force or of a
women's or children's institution takes advantage of his
official position and commits sexual assault on any inmate
of such jail, remand home, place or institution; or
(d) being on the management or on the staff of a
hospital, takes advantage of his official position and
commits sexual assault on a person in that hospital; or
(e) commits sexual assault on a woman knowing her
to be pregnant; or
(f) commits sexual assault on a person when such
person is under sixteen years of age; or
(g) commits gang sexual assault,
shall be punished with 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.
Explanation 1.- Where a person is subjected to sexual
assault 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 sexual assault
within the meaning of this sub-section.
Explanation 2.- "Women's or children's institution" means
an institution, whether called an orphanage or a home for
neglected women or children or a widows' home or an
institution called by any other name, which is established
and maintained for the reception and care of women or
children.
Explanation 3.- "Hospital" means the precincts of the
hospital and includes the precincts of any institution for
the reception and treatment of persons during
convalescence or of persons requiring medical attention or
rehabilitation."
3.3. Amendment of S.376A.- Representatives of Sakshi
wanted us to recommend the deletion of section 376A (as
well as Exception to section 375). Their logic was this:
when a man who causes hurt or any other physical injury to
his own wife is liable to be punished for such offence
like any other person causing such hurt or physical
injury, why should a husband who sexually assaults his
wife, who is living separately under a decree of
separation or under any custom or usage, be not punished
like any other person. Section 376A, which provides a
lesser punishment to a husband who sexually assaults his
own wife living separately in the aforesaid circumstances,
they argued, is arbitrary and discriminatory. They say
that once section 376A is deleted, the husband in such a
case would be punished under section 376(1) which carries
higher punishment than section 376A. While we appreciate
the force of said argument in the context of the wife who
is living separately under a decree of separation or under
any custom or usage, we can not at the same time ignore
the fact that even in such a case the bond of marriage
remains unsevered. In the circumstances, while
recommending that this section should be retained on the
statute book, we recommend enhancement of punishment under
the section.
3.3.1. Modification in section 376A of the IPC
recommended.- Accordingly, section 376A shall read as
follows: -
"376A. Sexual assault by the husband upon his wife during
separation.- Whoever commits sexual assault upon his wife,
who is living separately from him under a decree of
separation or under any custom or usage, without her
consent, shall be punished with imprisonment of either
description for a term which shall not be less than two
years and which may extend to seven years and shall also
be liable to fine."
3.4. Amendment of S.376B, 376C and 376D: Having regard
to the gravity of these offences, we recommend enhancement
of punishment - with a minimum punishment of not less than
five years. We have also added an Explanation which will
govern all these three sections. The Explanation defines
"sexual intercourse" to mean any of the acts mentioned in
clauses (a) to (e) of section 375. Explanation to section
375 will however apply even in the case of sexual
intercourse as defined by the Explanation to this section.
3.4.1. Modifications in sections 376B, 376C and 376D of
the IPC recommended.- Accordingly, section 376B with
necessary adaptations and changes, shall read as follows:
"376B. Sexual intercourse by public servant with person
in his custody.- Whoever, being a public servant, takes
advantage of his/her official position and induces or
seduces any person, who is in his/her custody as such
public servant or in the custody of a public servant
subordinate to him, to have sexual intercourse with
him/her, such sexual intercourse not amounting to the
offence of sexual assault, shall be punished with
imprisonment of either description for a term which shall
not be less than five years and which may extend to ten
years 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 for a term of less than five
years.
Explanation: "Sexual intercourse" in this section and
sections 376C and 376D shall mean any of the acts
mentioned in clauses (a) to (e) of section 375.
Explanation to section 375 shall also be applicable."
"376C. Sexual intercourse by superintendent of jail,
remand home, etc.- Whoever, being the superintendent or
manager of a jail, remand home or other place of custody
established by or under any law for the time being in
force or of a women's or children's institution takes
advantage of his/her official position and induces or
seduces any inmate of such jail, remand home, place or
institution to have sexual intercourse with him/her, such
sexual intercourse not amounting to the offence of sexual
assault, shall be punished with imprisonment of either
description for a term which shall not be less than five
years and which may extend to ten years 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 for a term of less than five
years.
Explanation 1.- "Superintendent" in relation to a jail,
remand home or other place of custody or a women's or
children's institution includes a person holding any other
office in such jail, remand home, place or institution by
virtue of which he/she can exercise any authority or
control over its inmates.
Explanation 2.- The expression "women's or children's
institution" shall have the same meaning as in Explanation
2 to sub-section (2) of section 376.
376D. Sexual intercourse by any member of the management
or staff of a hospital with any woman in that hospital.
Whoever, being on the management of a hospital or being on
the staff of a hospital takes advantage of his/her
position and has sexual intercourse with any person in
that hospital, such sexual intercourse not amounting to
the offence of sexual assault, shall be punished with
imprisonment of either description for a term which shall
not be less than five years and which may extend to ten
years 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 for a term of less than five
years.
Explanation.- The expression "hospital" shall have the
same meaning as in Explanation 3 to sub-section (2) of
section 376."
3.5. Insertion of section 376E:
This is a wholly new section recommended by us.
We have called it the offence of `unlawful sexual
contact'. This section is intended to cover a wide
variety of offences including sexual harassment at work
place and sexual perversions of the kind mentioned in the
note submitted by Sakshi. Sub-section (1) of this new
section covers touching, directly or indirectly, with a
part of the body or with an object, any part of the body
of another person (not being the spouse of such person),
with sexual intent and without the consent of such other
person. In case the other person is below sixteen years
of age, we have recommended higher punishment.
Sub-section (2) is an extension or elaboration of the
offence mentioned in sub-section (1), while sub-section
(3) deals with a case where such offence is committed on a
young person - young person being defined by the
Explanation to mean a person below the age of sixteen
years. If the offence of unlawful sexual contact is
committed on a young person by a person with whom such
young person is in a relationship of dependency, the
punishment is rigorous imprisonment which may extend to
seven years or with fine or with both and in case the
offender happens to be the father, grandfather or brother,
a still higher punishment is provided for. In the case of
a `young person', consent is treated as irrelevant.
(Sections 151, 152 and 153 of the Canadian Criminal Code
also contain similar provisions).
3.5.1. Insertion of new section 376E recommended.- We
therefore recommend that a new section, namely, section
376E be inserted in the IPC in the following terms:
"376E. Unlawful sexual contact (1) Whoever, with sexual
intent, touches, directly or indirectly, with a part of
the body or with an object, any part of the body of
another person, not being the spouse of such person,
without the consent of such other person, shall be
punished with simple imprisonment for a term which may
extend to two years or with fine or with both.
(2) Whoever, with sexual intent, invites, counsels or
incites a young person to touch, directly or indirectly,
with a part of the body or with an object, the body of any
person, including the body of the person who so invites,
counsels or incites, or touches, with sexual intent,
directly or indirectly, with a part of the body or with an
object any part of the body of a young person, shall be
punished with imprisonment of either description which may
extend to three years and shall also be liable to fine.
(3) Whoever being in a position of trust or authority
towards a young person or is a person with whom the young
person is in a relationship of dependency, touches,
directly or indirectly, with sexual intent, with a part of
the body or with an object, any part of the body of such
young person, shall be punished with imprisonment of
either description which may extend to seven years and
shall also be liable to fine.
Explanation: "Young person" in this sub-section and
sub-section (2) means a person below the age of sixteen
years."
3.6. Deletion of section 377:
In the light of the change effected by us in
section 375, we are of the opinion that section 377
deserves to be deleted. After the changes effected by us
in the preceding provisions (sections 375 to 376E), the
only content left in section 377 is having voluntary
carnal intercourse with any animal. We may leave such
persons to their just deserts.
3.7. Amendment of section 509:
So far as this section is concerned, the only
change we are suggesting is enhancement of punishment. We
recommend that the existing section 509 be amended as
follows:
"509. Word, gesture or act intended to insult the
modesty of a woman:
Whoever, intending to insult the modesty of any
woman, utters any word, makes any sound or gesture, or
exhibits any object intending that such word or sound
shall be heard, or that such gesture or object shall be
seen, by such woman, or intrudes upon the privacy of such
woman, shall be punished with simple imprisonment for a
term which may extend to three years and shall also be
liable to fine.
3.8. New Section 166A, IPC:
The 84th Report of the Law Commission had
recommended (para 3.20) that a new section, namely,
section 166A, be inserted in the Indian Penal Code. The
object behind this new section was to punish a public
servant who knowingly disobeys any direction of law
prohibiting him from requiring the attendance at any place
of any person for the purpose of investigation into an
offence or other matter or knowingly disobeys any other
direction of law regulating the manner in which he shall
conduct such investigation and which act of his causes
prejudice to any person. The representatives of Sakshi
with whom we had a discussion, requested that a new
section as recommended by 84th Report of the Law
Commission be recommended to be inserted in the IPC. This
provision must be understood in the light of the fact that
in the next chapter, we are recommending several measures
with respect to the manner in which the statement of women
and children (below 16 years) should be recorded, the
place where it should be recorded and so on.
3.8.1. New section 166A of the IPC
recommended.Accordingly, we recommend that a new section
be introduced in the IPC in the following terms:
"166A. Whoever, being a public servant-
(a) knowingly disobeys any direction of
the law prohibiting him from requiring the
attendance at any place of any person for the
purpose of investigation into an offence or other
matter, or
(b) knowingly disobeys any other direction
of the law regulating the manner in which he shall
conduct such investigation, to the prejudice of
any person, shall be punished with imprisonment
for a term which may extend to one year or with
fine or with both."
3.9. Views of "Sakshi" for defining `consent'
considered.- Lastly, we may refer to a request of Sakshi
to insert the definition of "consent" for the purpose of
the aforesaid sections. We are however of the opinion
that no such definition is called for at this stage, for
the reason that the said expression has already been
interpreted and pronounced upon by the courts in India in
a good number of cases. Reference in this behalf may be
made to page 700 of the Commentary on IPC by Justice
Jaspal Singh (First Edition 1998) where it is stated, on
the basis of the decisions of the Madras, Punjab and
Nagpur High Courts, that "consent implies the exercise of
a free and untrammelled right to forbid or withhold what
is being consented to; it always is a voluntary and
conscious acceptance of what is proposed to be done by
another and concurred in by the former".
CHAPTER FOUR
Changes recommended in the Code of Criminal
Procedure, 1973
4.1. Proposals of "Sakshi" relating to the Code of
Criminal Procedure.- As stated in chapter two, the
representatives of Sakshi have come forward with as many
as 14 recommendations proposing amendments to the Code of
Criminal Procedure and the Evidence Act. We had mentioned
them in the said chapter. We shall now proceed to discuss
them.
4.2. Addition of sub-sections (3) to (5) in section
160, CrPC.- The 84th Report of the Law Commission had
recommended (paragraphs 3.1 to 3.15) that sub-sections (3)
to (7) be added in section 160. Instead of paraphrasing
the reasons given in the 84th Report in our own words, it
would be appropriate to set out paragraphs 3.11 to 3.15 of
that Report hereinbelow:
"IV. Interrogation of female victims of sexual
offences
3.11 Reporting and Investigation.- These matters
concern the arrest and detention of women in
general. We now deal with certain matters
peculiar to women who are victims of sexual
offences. Women who have been raped are reluctant
to report it, partly because of the embarrassment
of discussing the details with male policemen, and
partly because of the very fear of even more
painful humiliation of being a witness in Court.
They get scared and become confused when,
in the strange environment of the Court room, they
have to conduct themselves in a manner foreign to
their custom and under a restraint not conducive
to clear and coherent thought or free expression.
3.12 Investigation by female police - No statutory
change recommended.- A woman is often discouraged
from pressing a charge of rape or other sexual
offence by the fact that she usually encounters
only male police and prosecution officers. It is
presumably for this reason that it has been
suggested that the investigation of such offences
should be done by women police officers only.
We would be happy if the questioning of
female victims of sexual offences would be done by
women police officers only. We are not, however,
inclined to recommend a statutory provision in
this regard. A mandatory provision to that effect
may prove to be unworkable. The number of women
police officers in rural areas is very small.
Even in urban areas, unless a centralised cell
(with the status of a police station) is created
for investigation into sexual offences against
women, such a provision may not be practicable.
We regard this difficulty as a transient
one. An all-out effort for the recruitment of
sufficient number of women police officers, who
could be drafted for the police duties of
interrogation and investigation, should be made.
3.13 Practice to be adopted in metropolitan
cities.- Till then, in metropolitan cities or big
cities where there are sufficient number of women
police offficers, a practice should be established
that women police officers alone investigate
sexual offences and interrogate the victim.
We are, therefore, not in favour of any
statutory provision being made in this respect,
subject to what we are recommending in the next
paragraph.
3.14 Interrogation of child victim of rape
Statutory provision recommended.- The practice as
suggested above could be adopted in metropolitcan
areas and big cities. But there is one matter
which is of importance for the whole country. It
is necessary that in the case of girls below a
certain age - say, below twelve years who are
victims of rape, there should be a statutory
provision to ensure that the girl must be
interrogated only by a woman. A woman police
officer would be preferable. But, if a woman
police officer is not available, an alternate
procedure as detailed below should be followed.
The alternate procedure that we
contemplate is this. Where a woman police officer
is not available, the officer in charge of the
police station should forward a list of questions
to a qualified female (we shall suggest details
later) who would, after recording the information
as ascertained from the child victim, return the
papers to the officer in charge of the police
station. If necessary, further questions to be
put to the child may be sent by the police to the
interrogator.
For the present, this procedure may be
applied to female victims below 12 years. It
could later be utilised for child witnesses in
general, if found practicable.
The "qualified female" whom we have in
mind should be one who is a social worker
belonging to a recognised social organisation. If
she possesses some knowledge of law and procedure,
it would be all the more useful, but that need not
be a statutory requirement.
3.15 Amendment of section 160 recommended by
insertion of sub-sections (3) to (7).- In view of
what is stated above, we would recommend the
addition of the following provision - say, as new
sub-sections - in section 160 of the Code of
Criminal Procedure, 1973:
"(3) Where, under this chapter,
the statement of a girl under the age of
twelve years is to be recorded, either as
first information of an offence or in the
course of an investigation into an
offence, and the girl is a person against
whom an offence under section 354, 354A or
375 of the Indian Penal Code is alleged to
have been committed or attempted, the
statement shall be recorded either by a
female police officer or by a person
authorised by such organisation interested
in the welfare of women or children as is
recognised in this behalf by the State
Government by notification in the official
gazette.
(4) Where the case is one to which
the provisions of sub-section (3) apply,
and a female police officer is not
available, the officer in charge of the
police station shall, in order to
facilitate the recording of the statement,
forward to the person referred to in that
sub-section a written request setting out
the points on which information is
required to be elicited from the girl.
(5) The person to whom such a
written request is forwarded shall, after
recording the statement of the girl,
transmit the record to the officer in
charge of the police station.
(6) where the statement recorded
by such person as forwarded under
sub-section (5) appears in any respect to
require clarification or amplification,
the officer in charge of the police
station shall return the papers to the
person by whom it was forwarded, with a
request for clarification or amplification
on specified matters; and such person
shall thereupon record the further
statement of the girl in conformity with
the request and return the papers to the
officer in charge of the police station.
(7) The statement of the girl
recorded and forwarded under sub-sections
(3) to (6) shall, for the purpose of the
law relating to the admissibility in
evidence of statements made by any person,
be deemed to be a statement recorded by a
police officer.""
4.2.1. The representatives of Sakshi supported the said
recommendation and wanted us to reiterate the same.
4.2.2. The 154th Report of the Law Commission dealt with
the above recommendation in paragraphs 6.5 to 6.9. After
setting out the aforesaid sub-sections in para 6.5, the
154th Report makes the following comments and
recommendation in paragraphs 6.6 to 6.9 of chapter XVIII:
"6.6 The origin of this suggestion in its
embryonic form can be traced to the Law
Commission's Reports on "Rape and Allied Offences"
and "Women in Custody".
6.7 The Bill (NCW) has gone beyond the Law
Commission's earlier recommendations in that,
insisting on the presence of a female police
officer. Though the presence of such female
officer is useful and necessary, their absence
should not lead to delay in the investigation of
the offences. Sub-sections (4), (5), (6) and (7)
referred to above obligates the officer incharge
of the police station to forward the person to a
representative of a government, recognised women's
organisation and the statement recorded by such
person shall be deemed to be a statement recorded
by the police officer.
6.8 It may be pointed out that the 1994
Bill does not incorporate the above amendment.
6.9 We are of the opinion that section 160
be amended on the lines suggested above subject to
certain modifications. The recommendation made in
sub-section (4) of NCW Bill is not practicable
having regard to the present condition and dearth
of female police officers. It may also not be
practicable for the victim or any person
interested in her to approach the person mentioned
in sub-section (3). Instead, we suggest that
sub-section (4) may be amended to the effect that
where a female police officer is not available and
to contact the person mentioned in sub-section (3)
is difficult, the officer in charge of the police
station, for reasons to be recorded in writing,
shall proceed with the recording of the statement
of the victim in the presence of a relative of the
victim.
Further, the age of "twelve years" be raised to
"eighteen years" in conformity with the Convention
on the Rights of the Child."
4.2.3. Reiteration of the recommendations made in the
154th Report.- On a consideration of all the relevant
facts and the realities of life, we too are of the opinion
that the procedure indicated in the sub-sections (4), (5)
and (6) is too involved besides being impracticable.
Implementation of the several steps mentioned in the said
sub-sections (4) to (6) would indeed result in unnecessary
harassment to the victim of the offence or to the
complainant, as the case may be. We are inclined to agree
with the opinion expressed in para 6.9 of the 154th Report
of the Law Commission in this behalf. We have however
changed the language of sub-section (3) by including a
woman government officer. Changes are also called for in
the light of the amendments effected by Act 43 of 1983 and
also in the light of the recommendations made by us in
paras 3.2 and 3.5 (substitution of the offence in section
375 and the addition of section 376E).
4.2.3.1. Insertion of sub-sections (3) & (4) in
section 160 of the Code of Criminal Procedure,
1973.Accordingly, we recommend that the following two
sub-sections be inserted in section 160 of the Code of
Criminal Procedure:
"(3) Where under this chapter, the statement of a
female is to be recorded either as first
information of an offence or in the course of an
investigation into an offence and she is a person
against whom an offence under sections 354, 375,
376, 376A, 376B, 376C, 376D, 376E or 509 of the
Indian Penal Code is alleged to have been
committed or attempted, the statement shall be
recorded by a female police officer and in case a
female police officer is not available, by a
female government servant available in the
vicinity and in case a female government servant
is also not available, by a female authorised by
an organisation interested in the welfare of women
or children.
(4) Where in any case none of the alternatives
mentioned in sub-section (3) can be followed for
the reason that no female police officer or female
government servant or a female authorised by an
organisation interested in the welfare of women
and children is available, the officer in charge
of the police station shall, after recording the
reasons in writing, proceed with the recording of
the statement of such female victim in the
presence of a relative of the victim."
4.3. Substitution of the proviso to sub-section (1) of
section 160.- Sub-section (1) of section 160 deals with
the power of a police officer to require the attendance of
witnesses who appear to be acquainted with the facts and
circumstances of the case being investigated by him. It
also casts an obligation upon the person so required to
attend. The proviso as it now stands, however, says that
"no male person under the age of 15 years or woman shall
be required to attend at any place other than the place in
which such male person or woman resides". We recommend
raising the age from 15 years mentioned in the said
proviso to 16 years.
4.3.1. Consideration of the view of "Sakshi" regarding
presence of a relative or a friend or a social worker
during the investigation.- At this stage, we may deal with
another suggestion put forward by Sakshi to provide that
even where the statement of a male person under the age of
16 years or of a female is recorded by a police officer
during the course of investigation, a relative or a friend
or a social worker of the choice of such male person below
16 years or the woman, as the case may be, shall be
allowed to be present throughout the period during which
the statement is recorded. We are inclined to agree with
this suggestion, particularly in the light of the decision
of the Supreme Court in Nandini Satpathy v. P.L. Dani
(AIR 1978 SC 1025).
4.3.2. Substitution of the proviso to sub-section (1) of
section 160 recommended.- Accordingly, we recommend that
the proviso to sub-section (1) of section 160 be
substituted to read as below:
"Provided that no male person under the age of 16
years or woman shall be required to attend at any
place other than the place in which such male
person or woman resides. While recording the
statement, a relative or a friend or a social
worker of the choice of the person whose statement
is being recorded shall be allowed to remain
present. The relative, friend or social worker so
allowed to be present shall not interfere with the
recording of statement in any manner whatsoever."
4.4. Insertion of a new section, namely section 164A in
the Code of Criminal Procedure.- The 84th Report of the
Law Commission had recommended insertion of such a
provision in paragraphs 4.8 to 4.11 of chapter 4. The
reasons for such a provision and the provision suggested
are the following:
"III. Examination of the victim
4.8 Section 164A, CrPC (To be added).- We next
deal with the victim. In many cases, the report
of the medical examiner as to the examination of
the female victim is also found to be somewhat
cursory and does not give adequate information
about the material particulars which are necessary
for an adjudication as to the various ingredients
of section 375. Further, it is sometimes noticed
that the medical examination report is not sent
promptly to the investigating officer. As a
result, the possibility of tampering with the
report remains.
In our opinion, the report of the
examination of the victim in a case of rape should
(besides containing the usual formal particulars)
deal specifically with -
(i) the age of the victim,
(ii) the question whether the victim
was previously used to sexual intercourse,
(iii) injuries to the body of the
victim,
(iv) general mental condition of the
victim, and
(v) other material particulars in
reasonable detail.
It is also necessary that the report
should note the time of examination and be sent
without delay to the investigating officer. It is
very important that the report should state
reasons for the conclusions recorded.
4.9 Need for legislative provisions.- Ordinarily,
such matters are left to be dealt with by
executive instructions. However, having regard to
the importance of the subject, it would be proper
to insert in the Code of Criminal Procedure, at an
appropriate place, a provision incorporating the
guidelines that we have suggested above. In the
light of the practical working of the provision,
further improvements could be made in the relevant
provisions.
4.10 Section 164A, CrPC, recommended.Accordingly,
we recommend that the following new section should
be inserted in the Code of Criminal Procedure,
1973:
"164A. (1) Where, during the
stage when an offence of rape or attempt
to commit rape is under investigation, it
is proposed to get the person of the woman
with whom rape is alleged to have been
committed or attempted, examined by a
medical expert, such examination shall be
conducted by a registered medical
practitioner, with the consent of the
woman or of some person competent to give
such consent on her behalf and the woman
shall be forwarded to the registered
medical practitioner without delay.
(2) The registered medical
practitioner to whom such woman is
forwarded shall without delay examine her
person and prepare a report specifically
recording the result of his examination
and giving the following details:
(i) the name and address of the
woman and of the person by whom
she was brought,
(ii) the age of the woman,
(iii) whether the victim was
previously used to sexual
intercourse,
(iv) marks of injuries, if any, on
the person of the woman,
(v) general mental condition of
the woman, and
(vi) other material particulars,
in reasonable detail.
(3) The report shall state
precisely the reasons for each conclusion
arrived at.
(4) The report shall specifically
record that the consent of the woman or of
some person competent to give such consent
on her behalf to such examination had been
obtained.
(5) The exact time of commencement
and completion of the examination shall
also be noted in the report, and the
registered medical practitioner shall
without delay, forward the report to the
investigating officer, who shall forward
it to the Magistrate referred to in
section 173 as part of the documents
referred to in clause (a) of sub-section
(5) of that section.
(6) Nothing in this section shall
be construed as rendering lawful any
examination without the consent of the
victim or of any person competent to give
such consent on her behalf."
4.11 Medical examination of the victim of rape.In
regard to the examination of the person of the
accused, section 53(2) of the Code of Criminal
Procedure provides that whenever the person of a
female is to be examined under that section, the
examination shall be made only by, or under the
supervision of, a female registered medical
practitioner.
The question whether a provision should be
inserted to the effect that where a female victim
of a sexual offence is to be examined, the medical
examination shall be conducted only by a female
medical practitioner has been carefully considered
by us. We think that a statutory provision is not
necessary, for two reasons. In the first place,
this is almost the invariable practice in India
and a statutory mandate is not needed. In the
second place, if a female victim does not wish to
submit to examination by a male doctor, there is
no legal obligation on her part to do so. For
that reason also, a statutory provision is not
necessary. It may be mentioned that such medical
examination cannot be lawfully made without the
consent of the woman or of some person competent
to give consent."
4.5. Reiteration of the above proposal in the 154th
Report.- The 154th Report of the Law Commission has
reiterated the said proposal in paras 7.1 to 7.3 of
chapter XVIII. The Commission expressed the opinion that
such a provision is eminently desirable subject to the
modification that medical examination be made preferably
by a female medical practitioner. The Report also
emphasises the importance and signifance of a speedy and
detailed medical examination of rape victims and speedy
despatch of such report to the investigating officer.
4.5.1. Acceptance of the proposal with consequential
changes.- We affirm and reiterate the aforesaid
recommendations contained in the 84th and 154th Reports.
However, in the light of the changes proposed by us in
section 375, necessary changes by way of adaptation have
to be made.
4.5.2. Insertion of section 164A in the Code of Criminal
Procedure recommended.- Accordingly, we recommend that the
following section 164A be inserted in the Code of Criminal
Procedure:
"164A. (1) Where, during the stage when
any offence under section 376, section 376A,
section 376B, section 376C, section 376D or
section 376E is under investigation and it is
proposed to get the victim examined by a medical
expert, such examination shall be conducted by a
registered medical practitioner, with the consent
of the victim or of some person competent to give
such consent on his/her behalf. In all cases, the
victim should be sent for such examination without
any delay.
Provided that if the victim happens to be
a female, the medical examination shall be
conducted by a female medical officer, as far as
possible.
(2) The registered medical practitioner to
whom the victim is forwarded shall without delay
examine the person and prepare a report
specifically recording the result of his
examination and giving the following details:
(i) the name and address of the victim and
the person by whom he/she was brought,
(ii) the age of the victim,
(iii) marks of injuries, if any, on the
person of the victim,
(iv) general mental condition of the
victim and
(v) other material particulars, in
reasonable detail.
(3) The report shall state precisely the
reasons for each conclusion arrived at.
(4) The report shall specifically record
that the consent of the victim or of some person
competent to give such consent on his/her behalf
to such examination had been obtained.
(5) The exact time of commencement and
completion of the examination shall also be noted
in the report, and the registered medical
practitioner shall without delay, forward the
report to the investigating officer, who shall
forward it to the Magistrate referred to in
section 173 as part of the documents referred to
in clause (a) of sub-section (5) of that section.
(6) Nothing in this section shall be
construed as rendering lawful any examination
without the consent of the victim or any person
competent to give such consent on his/her behalf."
4.6. Insertion of a new section 53A in the Code of
Criminal Procedure.- The 84th Report of the Law Commission
had recommended the insertion of new section 53A in paras
4.5 to 4.7 of chapter 4, which reads as follows:
"II. Examination of the accused
4.5 Provision in the Code - Need for timely
examination.- The Code of Criminal Procedure has,
in section 53, a general provision on the subject
of medical examination of the accused in all cases
where such examination would afford evidence of
commission of offence.
It is, however, seen that the report of
the medical examination is often cursory, or is
not sent in time, in cases of rape or attempt to
commit rape.
In a recent Calcutta case (Narayan Dutta
v. State, 1980 CrLJ 264, paras 1-2), the High
Court was constrained to observe-
"It is also striking that the appellant,
though arrested on that very night (9th
May) was not produced before Dr. Pal
(P.W. 11) who examined P.Ws. 1 and 10 on
10.5.1970."
4.6 Particulars to be entered and reasons
to be given.- It is also desirable that
the report should (besides containing the
usual formal particulars) deal
specifically with - (i) the age of the
accused, (ii) injuries to the body of the
accused, and (iii) other material
particulars in reasonable detail. It
should also note the precise time of
examination. It should be sent without
delay by the registered medical
practitioner to the investigating officer
and the latter should file it before the
Magistrate empowered to take cognisance
along with the documents sent with the
challan under section 173(5) of the Code.
4.7 Recommendation as to section 53,
CrPC.- It is very important that reasons
should be given for the opinion expressed
in the report. Accordingly, we recommend
the insertion in section 53 of the Code of
Criminal Procedure, of the following
sub-sections :
"Section 53(1A), (1B), (1C) and
(1D), Code of Criminal Procedure, 1973 to
be inserted.
(1A) When a person accused of rape
or an attempt to commit rape is arrested
and an examination of his person is to be
made under this section, he shall be
forwarded without delay to the registered
medical practitioner by whom he is to be
examined.
(1B) The registered medical
practitioner conducting such examination
shall without delay examine such person
and prepare a report specifically
recording the result of his examination
and giving the following particulars:
(i) the name and address
of the accused and of the person
by whom he was brought,
(ii) the age of the
accused,
(iii) marks of injury, if
any, on the person of the accused,
and
(iv) other material
particulars in reasonable detail.
(1C) The report shall state
precisely the reasons for each conclusion
arrived at.
(1D) The exact time of
commencement and completion of the
examination shall also be noted in the
report, and the registered medical
practitioner shall, without delay, forward
the report to the investigating officer,
who shall forward it to the Magistrate
referred to in section 173 as part of the
documents referred to in clause (a) of
sub-section (5) of that section.""
4.6.1. Views of "Sakshi" considered.- The
representatives of Sakshi supported the said proposal with
a few additions. By means of these additions it was
sought to be provided that the registered medical
practitioner shall also state in his report with respect
to "any traces of blood, semen and evidence of any recent
sexual activity in reasonable detail". We are, however,
of the opinion that the said addition suggested by Sakshi
is unnecessary since the provision as suggested by the
84th Report is comprehensive enough to take in the said
particulars as well. Accordingly, we affirm and reiterate
the recommendation of the 84th Report, subject, however,
to changes and adaptations in the light of our
recommendation for substitution of section 375 of the IPC.
4.6.2. New section 53A in the Code of Criminal Procedure,
1973 recommended.- Thus the proposed section 53A shall
read as follows:
"53A. (1) When a person accused of any of the
offences under sections 376, 376A, 376B, 376C,
376D or 376E or of an attempt to commit any of the
said offences, is arrested and an examination of
his/her person is to be made under this section,
he/she shall be sent without delay to the
registered medical practitioner by whom he/she is