A recent study revealed that among all cognizable crimes in India, rape has the lowest conviction rate. The overall rate of conviction of rape cases in India stands at 25.5% as on December 2016. About 2,78,886 rape cases have been reported in India over the last 10 years under Section 376 of the IPC. The conviction rate for rape at 25.5% remains low compared to all cognisable crimes.
The shocking report of the Thomson Reuters Foundation survey ranks India as the world’s most dangerous country for women. The massive popular uprising against the gang rape of “Nirbhaya”, a medical student in Delhi, led to the criminal law amendment in 2013. Even after that India is not better or different when it comes to the safety of women and children.
In May 2018, addressing the inaugural session of a national conference on ‘Gender Justice in Criminal Law’, Union Minister Hansraj Gangaram Ahir expressed grave concern over low conviction rates in cases of crime against women and said speedy disposal of such cases alone can check the crimes and act as a deterrent. He also highlighted the harsher punishments including capital punishment introduced in the 2013 Criminal Law Amendment Act and the introduction of Fast Track Courts for speedy disposal.
Law conviction in rape cases is a matter of serious concern. Stringent laws or deterrent punishment or Fast Track Courts cannot check low conviction in rape cases.
There are very many reasons attached to low conviction. A two judge bench of the Supreme Court comprising of Justice Gyan Sudha Misra and Justice V.Gopala Gowda noted that although there are Fast Track Courts for disposal of cases, we do not yet have a fast track procedure for dealing with cases of rape and gang rape lodged under Section 376 IPC with the result that such heinous offences are repeated incessantly.
One of the main reasons for the low conviction is the influence of money, muscle and mafia power in criminal procedure coupled with undue influence of the accused. There is a strong tendency to protect the alleged accused either by political leaders or by religious leaders. Politics and religion play an important role in protecting the accused. The undue influence of the accused can create a shoddy investigation. This leads to weak charge sheet and later acquittal of the accused
In this regard, we cannot forget what happened in the Unnao rape case. The victim tried to commit suicide outside the house of the Chief Minister Yogi Adityanath stating inaction by the state. However her father was arrested and later died in police custody. The hospital report confirmed that he suffered 18 assault injuries. In Kathua incident the case quickly took a hideous communal twist, with a self-appointed Hindu Group staging marches in defence of the accused rapists, sounding nationalist slogans and waving national flags.
The Supreme Court initiated a case on its own record stating such impediment affects the dispensation of justice and would amount to obstruction of access to justice”. Justice Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud was also critical of the Jammu High Court Bar Association, which had passed a resolution not to attend the courts. Where an accused is highly influential an impartial and independent investigation is doubtful.
The Unnao and Kathua cases stand as national shame against the Prime Minister’s oft-quoted slogan, “Beti Bachao, Beti Padhao”.
In 2017, negligence on the part of a police officer who had investigated a rape case turned out to be the determining factor due to which the case’s trial fell apart, leading to the acquittal of the accused people. As a result, a court in Delhi directed the police Commissioner of Delhi to take ‘necessary action’ against the investigating officer. It shows how shoddy investigations can affect the criminal system. Investigation is basically an art of unearthing the truth for the purpose of successful detection and prosecution (AIR 1955 SC 196). As Justice KT Thomas rightly said “unmerited acquittals are on account of inefficiency or lapse or even connivance on the part of the public Prosecutor”. A defective investigation can be corrected by Public Prosecutor utilising different provisions of Cr.PC and Evidence Act. It shows even some Public Prosecutors are in connivance with the investigating agencies when the accused is in a position to exercise undue influence.
At times police refuses to register a complaint lodged by a rape victim, especially when the victim is from a poor family, from a minority community, from a particular caste or religion, etc. (I call them ‘Powerless Indians’). As a result, some victims have committed suicide. In some other cases, the alleged accused killed the victims, taking advantage of non-registration of the complaints.
According to the Guidelines of the Supreme Court about recording the statement of a rape victim, on receipt of information relating to the commission of offence of rape, the Investigating Officer should make immediate steps to take the victim to any Metropolitan/preferably Judicial Magistrate for the purpose of recording her statement under Section 164 Cr.P.C. The Officer also should record specifically the date and the time about the commission of the offence of rape and the date and time at which he took the victim to the Metropolitan Judicial Magistrate, preferably a lady. However all these are not followed by the investigating agencies/officers.
Many rape victims have retracted from their statements due to threat and force from the so called ‘influencial’. In April 2018, the Supreme Court noted, “When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system…we find that it is becoming a common phenomenon, almost a regular feature, that in criminal cases witnesses turn hostile.”
Sometimes the rape victim is not represented by a competent lawyer. Right to be represented by a lawyer when facing criminal charges being “one of the safeguards to insure fundamental human rights of life and liberty” (Johnson v.Zerbst, 304 US.458, 462-63(1938), competent legal representation in the trial is also very important.
We must have a strong system where our law enforcing agencies can carry out a proper investigation and file an effective charge sheet without being influenced by the mighty and powerful. Unless the police prepare the charge sheet, trial cannot commence, unless there is a trial, no conviction can take place.
The Centre should draft a comprehensive scheme for providing protection to witnesses who face threats for deposing against those accused in criminal cases and ensure that they give evidence in courts without fear for a fair trial.
“These are crimes against the body of a woman which is her own temple. These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the “purest treasure” is lost. Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct,” said Supreme Court.
In conclusion, a stringent punishment or fast track court alone cannot bring justice to the victim of a crime or raise the conviction in case of rape. Impartial investigation, a strong charge sheet and a proper trial are the back bones of criminal justice system .
(The writer is an Advocate with the Supreme Court of India)(Published on 23rd July 2018, Volume XXX, Issue 30)