July 31, 2010

Hindustan times
28.7. 2010

Fast-track courts to try child rape cases

Alarmed by the increasing number of child rape cases, the state government will try the accused in fast-track courts and end the trials in three months. Home Minister R R Patil made this announcement in the Legislative Assembly on Tuesday after legislators expressed concern over the increase in
crimes against underage girls during a debate on law and order issues.

"We want to dispose of child rape cases in three months," Patil told the House.
According to Patil, 11 child rapes were registered across the state in last six months. In Kurla's Nehru Nagar alone, three girls were raped and murdered since March.

"Arrests were made in eight cases," Patil said. "Now, we need to get them [accused] harsh sentences at the earliest."

Patil said the government will seek the Bombay High Court's approval for the fast-track courts. The administration will put up a proposal to this effect very soon, he added.


Delay in rape FIR no grounds for acquittal: HC

Delay in lodging an FIR cannot be the grounds to seek acquittal in a rape case, ruled the Bombay high court.

Last week, the court was referring to a case in which an illiterate woman from Bengal was raped by two men on March 22, 2001. But the complaint was filed about 20 hours later, as her husband had initially refused to come with her to police station. But later when the neighbours intervened, he went with her and lodged a complaint.

Justice JH Bhatia, while upholding a 10-year rigorous imprisonment sentence granted to the convict, observed: "As far as delay of about 20 hours in lodging the FIR, there appears sufficient explanation. She came from a very poor family and was totally dependent on her husband who was also not willing to support her."
Although, the medical report did not confirm rape, the court held that her evidence was good enough to nail the accused (convict).

"In the present case, there is no reason to disbelieve the evidence of the prosecutrix who is married with a 15-year-old son. The incident took place at about 2 and 2.30 am. Her mouth was shut and her legs were pressed, she was unable to shout or resist," observed the court.

The court said none of the neighbours heard her cries as most were labourers who were asleep after a day's work. When her husband, who worked in the night shift, came home at 5am, he did not pay attention to her pleas as he was drunk. The victim then approached her neighbours, said the court.

"The fact that she approached the neighbours and told them about the incident and with their help, she went to the police station and lodged the report indicates that she wanted justice for the offence committed against her. Therefore, she appears to be trustworthy witness," said the judgment.

Mumbai Mirror

Political pressure, police goof-up lead to acquittal of rape accused

The Dindoshi Sessions Court on Friday acquitted Sunil Sanus, 22, of raping a minor girl mainly because the girl’s mother deposed that the police refused to register their case until the local corporator and MLA pressured them to. To make matters worse, the police goofed up with procedures.

An 11-year-old girl was playing with her friend in a Goregaon garden around 8.30 pm on June 15, 2008, when Sanus allegedly went up to her. As her friend ran away, Sanus allegedly gagged the girl and took her to a corner, where he allegedly undressed and then raped her. A woman passing by witnessed the incident and shouted for help. A crowd gathered, thrashed him and took him to Goregaon police station.

To the prosecution’s dismay, in her testimony, the girl’s mother admitted, “The police were not ready to record the FIR. We waited in the police station for five hours. Thereafter, the MLA and the corporator rang up the police station and then the FIR was registered. Before that, they had only enquired about the incident.”

Defence lawyer Arun Jadhav said that this created doubt about the authenticity of the girl’s complaint. “By showing that the FIR was registered only after being pressured, a doubt was created over the complaint itself.” Besides, the girl had in her statement named Sanus, but in her medical check-up, had referred to the accused as ‘unknown’ and said that he had only undressed her and attempted to rape her. However, the girl’s mother contradicted saying she had been raped.

But what worsened the case was the police inexplicably not summoning any of the witnesses from the crowd who had allegedly caught Sanus red-handed or the woman who first witnessed the alleged act. In fact, investigating officer API Ashok Sawant, who is now with the Crime Branch, deposed that they couldn’t trace that woman or the girl’s friend who fled the scene on seeing Sanus. Sawant deposed, “After their statement and the seizure of clothes, they were called the next day so as to send the victim to Nagpada police hospital for medical check-up.”

By this admission, Sawant established that the girl had washed up crucial medical evidence of rape, Jadhav added. “To add to this, the police’s claims that the crowd had battered Sanus and torn his shirt couldn’t be established as the shirt was not torn at all and he had no bruises on his face. Sanus was clearly framed,” said Jadhav.

July 24, 2010

Times of India

Sex after false promise of marriage doesn’t amount to rape’

Nagpur: The Nagpur bench of the Bombay HC has ruled that sexual relationship with a woman after making false promises of marriage does not amount to rape, and acquitted a man from offences of raping a girl.

A single-judge bench of Justice Ambadas Joshi observed that “sexual relationship under a mistaken belief and hence a rape, as developed in the process of trial, does not stand in the eye of law”. It set aside the Yavatmal sessions court’s order that convicted Sandip Rathod (now 42) under Section 376 of raping a girl allegedly 16 years old in 1996. The HC also said the victim’s age has been proved to be around 18 when the incident occurred.

Rathod, then 30 years old, was serving at a forest office near Mala’s (name changed) home. He developed sexual relations with her and promised to marry her. Mala informed her parents when she became pregnant and Rathod was arrested on her parents’ complaint.

Charged with repeatedly having sexual relations with an “underaged’’ Mala on and before November 11, 1996, the sessions court sentenced him to 10-year rigorous imprisonment. Two years later, the accused, a Yavatmal resident, challenged the conviction in the high court. The bench cited the Supreme Court and other rulings while acquitting him.


Supreme Court
Oct 5, 2006: A bench of Justices A K Mathur and Altamas Kabir held that having sexual intercourse with a girl with her consent obtained through fraud, coercion or on promise of marriage amounts to rape
Aug 29, 2007: A bench of Justices Arijit Pasayat and D K Jain said a man having sex with a girl after obtaining her consent on the promise of a marriage does not necessarily constitute rape even if he retracts on his pledge

High Court

February 1, 2010: The Delhi HC held that having sex with a girl on the promise of marriage and later refusing to tie the knot on flimsy grounds amounts to rape
July 17, 2010: The Bombay high court upheld the acquittal of a man who was charged with having sexual relations with a woman after making a false promise of marriage


Supreme Court paves the way for rape convict to join IAS

New Delhi: The Supreme Court has dismissed an appeal from the National Commission for Women (NCW) challenging a high court verdict that reduced life term of a rape convict to five-and-a-half years to pave the way for him to join the civil services.

Thus, Ashok Rai, who raped a 21-year old student that prompted her to commit suicide in 2003, can now stake claim for IAS or IPS, provided Union Public Service Commission (UPSC) rules don’t have any reservations on accepting candidates with a tainted past.

The top court also handed a setback to NCW, which had filed the challenging the Delhi high court verdict on Rai. SC said it (NCW) had no legal right to file an appeal in a criminal case.

Delhi government has already told the court that it does not agree with the high court. In February last year, HC had slashed Rai’s sentence to five-and-a-half years, saying he had had “redeemed himself in jail” by qualifying for the UPSC examination.

Dismissing NCW’s appeal, a bench of justices HS Bedi and CK Prasad told counsel Priya Hingorani, “There is no provision in the criminal procedure code allowing persons other than the state, prosecutor or the kin of the victim to file an appeal under such circumstances. You have no locus standi (right) in the case.”
Hingorani said rape is a serious crime and HC has given untenable grounds for reducing the convict’s punishment.

Stressing that sentence in rape cases must be exemplary, SC had said the social impact of the crime, such as where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency, which have great impact on social order and public interest, cannot be lost sight of and per se require exemplary treatment.
Some other judgments in rape cases have interested the legal analysts.
In one, it said rape is “violation of the private person of a woman” and an “outrage by all means”.

“By the very nature of the offence, it is an obnoxious act of the highest order,’’ judges had said.
In another case, judged quashed a HC judgment that acquitted a rape convict on the ground he was drunk.

The court also held that a rapist couldn’t be acquitted merely because the victim is used to sex. Even ifit is hypothetically accepted that the victim had lost her virginity earlier, it did not and cannot in law give license to any person to rape her.
“It is the accused who is on trial and not the victim,” the court said.

July 20, 2010

Mumbai Mirror

A girl being raped would ‘resist fiercely’: HC

High Court sets aside conviction of alleged rapist because teenaged victim testified she lay there with her eyes closed and did not scream for help. Picking flaws in the ‘unnatural conduct’ and testimony of a teenaged girl, the Bombay High Court has set aside the conviction of a man accused of raping her. The HC raised its doubts about the incident because the girl testified that she lay still with her eyes closed, did not scream for help or ‘fiercely resist’ the alleged rapist.
In January, the Ambajogai sessions court convicted Beed’s Ganesh Korde, 25, for rape and sentenced him to seven years imprisonment. The victim – who had claimed to be a minor – was alone at home on June 10, 2006, when Korde barged in, threatened her, undressed her, raped her and fled the scene.

The girl informed her parents when they returned and a complaint of rape was registered against Korde.

During the trial, the girl testified that she did not know Korde but didn’t ask him who he was when he entered the house. She stated that Korde pushed her to the floor and forced himself on her. But there was no scuffle between them, the girl testified, adding that she was ‘lying with (her) eyes closed when he began undressing her’.

Justice Shrihari Davare of the Aurangabad Bench of the HC observed, “In the natural course of events, the victim could have resisted and a scuffle would have taken place between her and Korde. It is curious and surprising to note that no such scuffled occurred. Also, when Korde was undressing her, although her hands and legs were free, she simply lay down with her eyes closed.

“This appears to be an unnatural conduct. The victim would have shouted and obstructed the accused. In view of such infirmities, her testimony comes under the cloud of suspicion.”

As her testimony was ‘uncorroborated’ Justice Davare noted, “Inaction on the victim’s part and Korde’s presence in her house for two hours speaks volumes for themselves.”

Unfortunately, for the victim, even the medical evidence didn’t establish rape. Evidence suggested that she was not a minor as claimed, the HC noted.

July 8, 2010

Hindustan Times

‘Physical relationship based on marriage promise is not rape’

Sexual relationship with a woman after making false promises of marriage does not amount to rape, the Bombay High Court has ruled. While acquitting a 42-year-old man from charge of repeatedly raping a minor girl in 1996, the Nagpur bench of the high court observed: ""

The story of sexual relationship under a mistaken belief and hence a rape, as developed in the process of trial, does not stand in the eye of law."
Sandeep Rathod, a resident of Kolambi village at Yavatmal, was arrested in 1996 for allegedly raping a 16-year-old girl.

The prosecution claimed that Rathod, who used to work at a forest office near the victim’s house, would often would go to over to her place for water.
On November 24, 1996, when the girl's parents and siblings were away, Rathod allegedly came to her house on the pretext of having water and allegedly raped her. He also allegedly threatened her and told her not to inform her parents.
He allegedly promised to marry her and continued to rape her for six months, the prosecution claimed.

When the girl got pregnant, her parents lodged a complaint and the man was arrested.
In 1998, after the sessions court sentenced him to 10 years of rigourous imprisonment, he challenged the sentence in the Bombay High Court.

His advocate, R.P. Joshi, argued: "The case begins with the story of rape, and develops as consented sexual relationship on mistaken belief for promise to marry."
The court observed that there was serious omission of duty on the part of the police if they claimed that the first act of sexual intercourse was forceful. The police had not lodge a complaint accordingly. "The prolonged sexual relationship, therefore, creates a strong doubt about first act too being forcible," observed Justice A.H. Joshi.

July 7, 2010


New guidelines for doctors on reporting child abuse

New Delhi: The Indian Academy of Paediatricians (IAP) has formulated new guidelines for pediatricians and other doctors on how to recognise and respond to child abuse, particularly sexual abuse

This has been done to help doctors treat abused children effectively and to keep an eye on suspicious cases.

The guidelines, prepared by IAP in consultation with National Commission for Protection of Child Rights (NCPCR) and Unicef, have been drawn from United Kingdom’s child rights law.

Under new rules, doctors will be required to report all cases of abuse, including suspicious ones, to the police, NGOs and child helplines. Doctors are protected by law in case of erroneous reporting, as long as it is in good faith. But they can be penalised if they fail to report under the proposed Prevention of Offences against Children (POC) law, which includes a two-year jail term.

“There are no uniform guidelines for pediatricians regarding their response to child abuse even though they are often the first contact of a child who has suffered abuse. These guidelines will train them how to document, record and report instances of abuse. The aim is to assist the criminal justice system,” said Mumbai-based Dr Samir Dalwai. He was part of the program which formulated these guidelines.
The basic rules include admission to hospital in cases of serious injuries but a child may be also admitted in case it is felt there is an immediate threat to his safety at home.

Doctors are to watch out for and record nonverbal cues as ‘watchful frozenness’, sad mood, avoidance of eye contact, etc. In case of sexual abuse doctors have to specifically record if there is resistance to examination, dissociation [going to sleep during examination], general demeanour, pallor, bruises, vitamin deficiencies.
In case of sexual abuse, STD screening, including low and high vaginal swabs in post-pubertal girls and urethral swabs in boys is recommended. Serology for HIV, Hepatitis B and syphilis are to be done in cases of acute sexual assault, penetrative abuse, vaginal/ urethral discharge and STD in abuser. Besides, there are contentious issues of giving STD prophylaxis and emergency contraception to an adolescent with acute sexual assault.

In India, results from a government study on child abuseindicated that two out of every three children suffer physical abuse (88.6% by their parents), 53.2% children face one or more forms of sexual abuse, and every second child reported facing emotional abuse. Unfortunately, most children do not report the matter to anyone.

July 5, 2010

Times of India

Child sex abuse bill in monsoon session

Special Courts Likely To Try Offenders

Chennai: The government is planning to table and pass in the next session of parliament a law to prevent sexual assault of children, Union law minister Veerappa Moily said on Sunday.

On June 30, TOI ran a story about the government planning an exclusive law to protect children from sexual assault and also that a special court will be set up to try such cases.

The Protection of Children From Sexual Assault Bill, 2010, seeks to protect children against offences of sexual assault and harassment more effectively than is possible under the provisions of Indian Penal Code. It will also eliminate ambiguity in defining crimes, make special courts with special powers mandatory for speedy trial, and overrule the need to obtain permission to penalise personnel of armed forces. The special courts will be appointed by the state governments and will have jurisdiction to try cases relating to child pornography.

“We have prepared the second working draft and will table and pass it in the next session of parliament as a separate law is inevitable. The government also hopes that all parties will extend their support in passing the bill,’’ he said. He was taking part in a discussion here on “Law reform and legislation on sexual offences against children’.

He also handed over the second draft of the bill and requested the participants to discuss and suggest changes and additions as early as possible because “we feel that there should be transparency in formulating the law’’.

In 4 years, no case will last over 3 years: Moily

Chennai: Steps are being taken to tone up the justice delivery system so that no litigation lasts beyond three years. And it will take four years for the measures to take effect. Talking to reporters after a meeting chief justices, law ministers and officials from the four southern states here, Union law minister M Veerappa Moily said the hefty grant of Rs 5,000 crore to upgrade infrastructure in the judiciary and steps like advancing the process of filling up posts even before they fall vacant and increasing the use of alternative dispute resolution forums would have the effect of reducing backlog of cases and bringing down litigation time. “In about four years, any litigation, of whatever kind, will not be prolonged beyond three years,’’ the law minister said. TNN

July 3, 2010

Times of India

‘Girl need not testify to nail rapist’

Mumbai: A man can be convicted of rape, even if the victim does not testify in court during the trial, the Bombay High Court has ruled. The court’s ruling came in the infamous case of 2002 when a mentally challenged minor girl was raped by a youth in a Borivli-bound suburban train.

“Non-examination of the girl in the given circumstances will not be fatal for the prosecution case,’’ said Justice J H Bhatia. The judge observed that the victim girl was mentally challenged and was unable to express herself. The victim’s evidence, therefore, was not recorded by the trial court. “In such circumstances, merely because her evidence could not be recorded, the evidence of two eye-witnesses and other circumstantial evidence corroborating them could not be simply brushed aside or thrown away,’’ said the judge while finding Jogeshwari resident Salim Shaikh guilty of the charge of rape.

The court, though, reduced Shaikh’s jail term from 10 years to seven years, after defence advocate Arfan Sait argued that there was no justification to award a more harsh prison term than the minimum prescribed by law. “Merely because the prosecutrix (victim) in this case was mentally retarded cannot be a reason to award the sentence of imprisonment for 10 years,’’ agreed Justice Bhatia. Shaikh who has been in jail since his arrest in August 2002, has been ordered to be released by the court if he has completed his sentence.

The incident, which shocked the city, occurred on August 14, 2002, at around 1.50 am in a Borivli-bound local train. The victim was travelling in the train, when the accused raped her between Malad and Borivli. When other commuters tried to come to the aid of the victim, Shaikh reportedly threatened them and jumped out as soon as the train reached Borivli station. Two of the commuters, who were the prime witnesses in the case, approached the police to register a complaint. Shaikh was nabbed while the victim was sent to a shelter. A medical examination confirmed rape. The trial court sentenced Shaikh to 10 years rigorous imprisonment. He then filed an appeal in the high court.

Advocate Sait, who was appointed from the legal aid panel to represent Shaikh, pointed to drawbacks in the prosecution story. Sait argued that the victim had not been examined to prove the offence of rape. The advocate also raised doubts on the testimony of the witnesses arguing that even though there were number of persons in the bogie in the running train, nobody had intervened. Additional public prosecutor Madhvi Mhatre said the victim was not examined during the trial as she was mentally challenged.

“The evidence of the medical officer, particularly in respect of the girl clearly goes to show that the girl must have been ravished,’’ said the HC. The court further said the witnesses had no reason to falsely implicate the accused. “It is not the case of the accused that these two persons and the accused met earlier or that they had any grudge against him or that they wanted to punish him or take some revenge for some enmity,’’ the court said.

The HC held Shaikh guilty of rape, but agreed with defence advocate Sait that the accused could not have been convicted of outraging modesty of a woman as he had already been charged with a graver crime.

Times of India

Khaps want girls' marriageable age lowered to 15

BHIWANI: Jat Mahasabha wants marriageable age of girls and boys to be lowered to 15 and 17 respectively so that couples don't elope and marry against the wishes of their families.

According to Om Prakash Mann, Haryana president of All India Jat Mahasabha, the demand will be discussed at a sarv khap panchayat on July 17 at Meham Chaubisi Chabutara in Rohtak. The demand was raised at a meeting of khap representatives at Dhanana village.

The panchayat will be attended by representatives of around 600 khaps of all castes and communities, including Jats, Rajputs, Sainis, Gujjars and Dhanaks, Mann claimed.

Khap panchayats had no role in honour killings, Mann said. "By lowering the legal age of marriage, young couples can be prevented from eloping. A girl brings shame to her family when she runs away. Parents kill the guilty children in a fit of rage," he said.

He, however, refused to comment on early marriage posing a hurdle to the education of girls. "I am concerned about young people getting killed by their families. This should be curbed immediatelt," he said.

He is planning a campaign to make the younger generation aware of their customs and traditions. But he was opposed to making a film on khaps.

"Any film showing khaps in a poor light will face violent opposition. The government, too, should not allow this," he said.

Times of India

Premarital sex is fine, say 90% teens

If you are a teenager who’s been abandoned for eight years in boarding school, then return home to an authoritarian father and younger step-brother who doesn’t know about you, are forced to work in your father’s steel factory in Jamshedpur, give up your dream of being a writer and study engineering instead... you are going to be one rebellious teenager indeed!

That is what Anurag Kashyap, Sanjay Singh and UTV Spot Boy’s film Udaan is about. And, in a unique promo to the film which releases on July 16, the producers attempted to study the mind and world of the Indian teenager and provide him/her a platform to be heard. Here’s how...

They conducted a comprehensive online survey that got urban teenagers to reveal crucial information about their lives. Very little data is available on how adolescents are grappling with growing up issues — particularly the more taboo issues of sex, what drives them to try alcohol, smoking, lying or stealing from their parents, etc. The study, targeting internet users between 12 and 19 in Delhi, Mumbai, Ahmedabad, Bengaluru, Chandigarh, Chennai, Hyderabad and Kolkata, ties in well with the ‘growing up pains’ theme of Udaan. It has been uploaded on surveymonkey with links on all major networking sites teenagers populate including the ‘Udaan FB page’.

And here’s a summary of the survey using 1,004 respondents (76% of them boys)... one in three teens is uncomfortable talking to their parents about stress/problems; one in three teens wants to change their study stream; one in 10 teens say they are closest to their dad; one in five teens have smoked before they turned 16; two in five teens have driven a car/bike before they reached 16; 50% of teens have kissed someone of the opposite sex; one in five teens have watched porn before they reached 13; one in two teens have watched porn before they reached 16; one in two kids steal money from their parents; one in five teens have got intimate in the school/college loo; 60% of teens want to choose a career purely of their own design; 90% of teens think premarital sex is fine.

July 1, 2010

Times of India

Soon, a law just on child sex abuse

So Far, Cases Tried Under IPC Didn’t Consider Victim’s Age, Had Many Grey Areas

Chennai: India will soon have its first law to deal exclusively with child sexual abuse cases. The provisional draft of the Bill, titled ‘Sexual Offences Against Children Bill, 2010’, seeks to substitute the word ‘rape’ with technical terms and cover several forms of abuse of both boys and girls, which now remain grey areas in the absence of a specific legislation. The proposed legislation calls for setting up of special courts, special public prosecutors and child-friendly proceedings.
“We have prepared a provisional draft in consultation with NGOs and experts, which will be forwarded to the ministry of woman and child development for inputs. We have not set a deadline to present the Bill in Parliament but we want to do it at the earliest, given the increasing number of child sexual abuse cases in the country,” law minister Veerappa Moily said.
Calling for special courts and special prosecutors in every district to try such cases, the draft proposes that evidence from the child be recorded within a month of the court taking cognizance and the trial be completed within a year. At present, cases of sexual offences against children are being tried under the Indian Penal Code, which does not always take into consideration the age of the victim. With such offences attracting only such sections that deal with rape, unnatural offences and outraging the modesty of a woman, many sexual offences against children, especially those against boys, were not getting a focussed trial, it was felt.
The draft proposes to prosecute child sex offenders mainly under five heads—penetrative sexual assault, aggravated penetrative sexual assault, sexual assault, aggravated sexual assault and sexual harassment. While penetrative sexual assault covers all kinds of penetration using body parts or objects, the other acts come under sexual assault. Sexual harassment covers abuse of a child using gestures and spoken words. The term ‘aggravated’ is prefixed to offences when the perpetrator is a person who wields power by virtue of being in a position of authority or trust or when the victim has a mental or physical disability. It recommends punishments ranging from three years in jail for ‘sexual harassment’ to life imprisonment for ‘aggravated sexual assault.’ The courts for offences against children would also hear cases as defined under the IT Act, which includes abuse through Net and child pornography.


The Sexual Offences Against Children Bill, 2010, will substitute rape with technical terms and cover several forms of abuse for both boys and girls

Draft proposes proof from child be recorded within a month of the court taking cognizance and trial conducted within a year

Call for setting up special courts, special public prosecutors and child-friendly trials