September 14, 2010

Times of India

Poverty is no grounds for showing leniency, says HC

MUMBAI: Upholding a trial court verdict that sentenced a man to nine years in prison for raping, trespass and threatening to kill a 22-year-old woman, the Bombay high court observed that poverty cannot be a reason to show leniency towards a rape accused.

Section 376 of the Indian Penal Code states that the maximum punishment for the offence is seven years, but for special reasons, lesser punishment may be imposed. Citing Supreme Court judgments, Justice Bhangale observed that "the socio-economic status of the accused or his religion, caste, creed are irrelevant factors''.

In 2006, Satinath Raut, a labourer, raped a woman in his village in Bhandara district. The incident occurred late at night when the woman was alone at home with her three-year-old daughter. Her husband and mother-in-law were away. The prosecution alleged that the accused had entered the victim's house, and taking advantage of the fact that she was alone, had threatened her with a knife and raped her.

In February 2007, a sessions court sentenced Raut to nine years on charges of rape, criminal trespass and threatening to kill the victim. He was also asked to pay the victim Rs 1,000 as compensation.

In 2009, Raut appealed before the Nagpur bench of the Bombay high court. In his appeal, he pleaded that he has five children and an aged mother to look after. Hence, the sentence imposed upon him for rape should be reduced for the period he has already undergone. Refusing to accept this, the court observed, "His socio-economic status cannot constitute adequate and special reason. Punishment, which is to be imposed upon the convict, has to be proportionate to the crime committed. The court has to bear in mind the society's cry for justice.''

Justice Bhangale also observed, "It might have been otherwise, had the victim herself come forward with an affidavit to forgive the appellant and to pray for lenient sentence for him.''

Times of India

Bill seeks cover for kids during trial

NEW DELHI: In a move that could bring greater sensitivity to investigation and handling of child sexual assault cases, a new bill proposes that children not be forced to confront the accused while testifying and the evidence be recorded within a month.

These child-friendly measures have been included in the 'Prevention of Offences against Child Bill 2009' by the ministry of women and child development (WCD).

"The special court shall ensure that the child is not exposed in any way to the accused at the time of evidence, while at the same time ensuring that the accused is in a position to hear the statement of the child and communicate with his advocate," the draft says. The proposed legislation also recommends that policemen appear in plainclothes so as not to intimidate the victim. Though the Supreme Court has laid down some guidelines on the issue, these are followed by courts only erratically.

Children can also use the services of an interpreter and will have to give evidence only in camera. The bill is likely to come up in the Union Cabinet by next month and may be introduced in the winter session of Parliament. WCD minister Krishna Tirath said, "We are introducing child-friendly procedures in the proposed bill to ensure cases of child sexual assault are handled with greater sensitivity." The bill — that is expected to address any unlawful physical contact with sexual intent — also adds pornography as an offence. Using a minor for pornography could make an individual liable for RI for 5 years extendable to 7 years and a fine of Rs 5 lakh extendable to Rs 10 lakh. Penalty for penetrative sexual assault has been proposed to be 10 years which could be extended to life imprisonment and a fine of Rs 1 lakh.

Whoever commits sexual assault can be punished with imprisonment of 3 years and Rs 25,000 as fine. Incidentally, the ministry has also asked the National Commission for Protection of Child Rights ( NCPCR) to explore changes in the Juvenile Justice Act to include stringent punishment for corporal punishment and ragging in educational institutions. A study by the WCD ministry found that 53% of children in India were sexually abused. Of these, a large majority (70%) remain unreported because the perpetrator is someone close to the child.

Former law commission member Kirti Singh said, "It is a good thing that child-friendly procedures are being adopted. I, however, feel that the definition of sexual assault has been narrowed instead of being widened." Sexual assault has been described as "whoever with sexual intent touches the vagina, penis, anus or breasts of the child or makes the child touch the vagina, penis, anus or breasts of other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault". Singh said the definition was too convoluted and simply describing the crime as "unlawful physical contact with sexual intent" would have been clearer.

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