The Indian Penal Code, 1860 (hereinafter IPC), drafted by T. B. McCauley and his colleague law commissioners, reflected the then prevailing sexual norms in India, criminalized 'rape' - a coercive non-consensual (as well as consensual in a set of specified circumstances) sexual intercourse with a woman. S.375 of the Indian Penal Code describes six circumstances in which the offence of rape is said to be committed. In these, the first and the second clauses are representative of the elements required to constitute the offence of rape and the rest characterizes different situations of consent and its absence in various circumstances incomprehensible or given based on a misconception of a fact by a woman. It is often stated that a woman who is raped undergoes two crises-the rape and the subsequent trial. While the first seriously wounds her dignity, curbs her individual, destroys her sense of security and may often ruin her physically, the second is no less potent of mischief, inasmuch as it not only forces her to re-live through the traumatic experience, but also does so in the glare of publicity in a totally alien atmosphere, with the whole apparatus and paraphernalia of the criminal justice system focused upon her. The main ingredients of rape are namely against will of the woman, without her consent, Consent procured by putting the woman under fear of death or hurt is no consent in law, Consent accorded under a misconception that the person is husband of the woman is not a valid consent, consent procured of a woman of unsound mind or under the influence of intoxication, etc. Most cases of prosecution fail because the victim is not able to prove that she did not consent to the act. The corollary that the judiciary seems to have adopted is that if the woman has failed to 'resist' at the time of act', she is deemed to have consented to the sexual intercourse. The judiciary, again surprisingly has held that lack of any injuries on the body or the private parts is a strong indicator of consent on the part of the woman. Tukaram v. State of Maharashtra has carried the debate on the definition of consent further. This famous (or rather infamous!) case, known by the name of "mathura case" has peculiar facts and different analysis of the same by the High Court on one side and Trial Court and Supreme Court on the other. This case was sought to be covered by the prosecution under cl.3 of the Indian Penal Code. It was alleged that that the victim was made to give consent by putting her in fear of death or hurt. The Sessions Court Judge disbelieved the prosecution story and held that corroborative circumstances lead to the conclusion that while Mathura was there in the Police Station she had sexual intercourse and that in all probability it was with Ganpat. Fearing the wrath of her relatives, the Judge held that she did not admit that she had surrendered her body to the constable. On appeal, the High Court said- "Mere passive or helpless surrender of the body and its resignation to the other's lust induced by threats or fear cannot be equated with the desire or will, nor can it furnish an answer by the mere fact that sexual act was not in opposition to such desire" Disagreeing with the High Court, the Supreme Court said that unless fear was shown to be that of death or hurt, it would not vitiate consent. The Supreme Court said - "Further, for circumstantial evidence to be used in order to prove an ingredient of an offence, it was to be such that it leads to no reasonable inference other than that of guilt. We have already pointed out that the fear, which clause thirdly of section 375 speaks of, is negativated by the circumstance that the girl is said to have been taken away by Ganpat right away from amongst her near and dear ones at a point of time when they were all leaving the police station together crossing the entrance gate to emerge out of it.." The Court observed that Mathura was subjected to no fear of death or hurt that may have led her to consent to the act and the absence of any injuries in any part of her body indicates that the affair on the whole, was a peaceful one and the story put up by her is totally false. It was observed further by Court that her relatives had been close by and Mathura could have raised resisted and appealed to her brother, had she had no intentions of satisfying the constable's lust. Her meek conduct, her following the constable and allowing him to have his way with her showed that she had consented.
Resistance and non-consent Resistance inasmuch as is a definite indicator of consent should not be laid down as the only means of expressing non-consent. There have been a number of acquittals merely because the judge found no evidence of 'resistance' from the victim. Adding insult to the injury, the inference that non-resistance to the sexual activity is an 'implicit consent' on the part of the victim to the sexual activity only draws out the patriarchal nature of the judiciary and overwhelming acceptance of traditional notions and myths of female sexuality existing in the society in modern times. The presumption that active resistance is the only criterion for proving non-consent is problematic at its best and illogical at its worst since such a view confers on the prosecutrix, the burden of proving her non consent and her consequent resistance to sexual intercourse. This is akin to treating the prosecutorix to that of an accomplice, and a severe insult on her dignity and being. Injuries on the body of the prosecutorix are the usual evidence that is looked for to prove resistance. Hence, where a person is charged with the offence of having committed rape, the question for determination is whether the woman was a consenting party or not. The first and foremost circumstance that is looked for in cases of this kind is the evidence of resistance which is expected from a woman unwilling to yield to sexual intercourse forced upon her. In case of Valliappa Harijan v. State of Goa , the prosecutorix narrated thus "I was forcibly thrown down and he (accused) made me lie on the towel. He then sat on my thighs and tied both my hands on either side and raped me". The courts response to this statement was that "One cannot understand how this action of the accused could be humanly possible particularly when a woman exerts resistance. Any woman of character and modesty would have put some amount of resistance when she is being raped. The doctor stated that the there were no injuries on the private part of the prosecutorix. It can be inferred that sexual intercourse, if at all has occurred, was only with the consent of the prosecutorix". The Apex Court has also held the opposite i.e the absence of any injury on the body negates the claim of resistance. The courts have failed to take notice of the situation of a rape victim that she may not be able to muster enough strength to repel the act. She can be in a sate of shock and fear that could inhibit her ability to resist or react violently to the act. A woman considering her stature in the society is generally not expected to assault a man. Therefore, there may not be any injury in her body. Failure of the judiciary to recognize this has resulted in resistance being an essential ingredient in determining lack of consent and where there is no injury on the body, it is deemed that the complainant had consented to the act.
Rape and Law of Evidence Rape remains one of the most misunderstood and underreported crimes. The victims are traumatized and there also exists a fear or dislike of "going to the police". From official statistics, it is seen that there is a sharp increase in the incidence of this crime in the country. A survey on rape cases shows that rape victims mostly come from the lower rungs of the society. Rape has a devastating effect on the survivors and aftershocks include depression, fear, guilt, diminished sexual interest etc. Because of the stigma attached to rape, the victim faces social ostracism.
Burden of proof of innocence on the accused In a criminal case the charge against the accused must be proved beyond reasonable doubt. The presumption is that the burden of proving everything necessary to bring home the guilt to the accused is on the prosecution. One of the most important elements of the offence of rape under section 375, IPC is the lack of consent of the victim. The prosecution must prove the non-consent beyond reasonable doubt, as per the canons of criminal law. It is of common knowledge that a large number of prosecutions for the offence of rape fail for want of such a proof. It is to remove this infirmity and other procedural difficulties in prosecution of a person charged with rape that the Criminal Law (Amendment) Act, 1983 (43 of 1983) section 6 has added section, 114A in the Evidence Act, 1972 with effect from December 25, 1983. A careful perusal of the section 114A of the Evidence Act, 1872 would reveal that the legislature has made a fine distinction between: Rape falling within sub-section (1) to section 376, and sub-section (2) clause (f), and Rape falling within clauses (a), (b), (c), (d), (e) and (g) of sub-section (2) to section 376 IPC. The change effects a marked departure from the classic principle of criminal jurisprudence, that a person is deemed innocent until the contrary is proved by the prosecution. As a result of the change, the charge that the alleged act of sexual intercourse was without or against the consent of the prosecutrix will be presumed ipso facto, unless the contrary is proved. That is to say, section 114A of the Evidence Act shifts the burden of proof on the accused to prove his innocence. Whether or not there is justification for engrafting the mandatory presumption in the above Act there is little warrant for it in a rape case. It is remarked that such a presumption would place a heavy burden on the alleged offender of rape while providing a weapon to the prosecution for blackmailing.
Conclusion It is elementary that the criminal law is the chief legal instrument for preventing anti-social acts of a serious character. This object is sought to be achieved, in the first instance, by the legislative command embodying that aspect of punishment, which is called "general deterrence". The fact that the particular crime has been committed shows that the object of deterrence has failed to prevent the particular criminal act. The debate on punishment for rape has progressed in two diagonally opposite directions. While one segment of the judiciary has consistently awarded less than the minimum mandatory punishment, another section of judges and opinion makers have been advocating for barbaric punishments of the medieval era to deal with the increase in reported cases of rapes in country. But at the other level, rape victims continue to be looked upon with suspicion and the issue of rape is trivialized. According to the National Crime Records Bureau, of the 284 cases of rape reported in Delhi in 1992, there were only 3 convictions by 1995. Similarly during 2001, of the 11,735 rape trials completed by courts all over the country, as many as 8,669 (76 per cent) failed and were acquittals or discharged . It is clear that feminist sensibility is not evenly spread across the judicial checkerboard. Almost always the trial courts are deeply imbued with the mission of penalty in rape cases; almost always the High Courts mitigate (a look at the case recited by the Supreme Court in this very case, confirms the tendency of the trial courts to take the offence seriously and of the High Courts to reverse well-grounded convictions). And the Supreme Court does, on the whole, though not with an integral consistency speak rigorously on behalf of the violated women. The patriarchal nature of the judiciary and the sensitization of the same are the needs of the hour. It is essential that the judiciary, which has pursued doggedly the quest to preserve the constitution, should also wake up to the reality in the Indian milieu, where the constitutional guarantees and imperatives granted to the woman are being grossly violated.
"Law should not sit limply, while those who defy it go free and those who seek its protection loses hope". (Jennison v. Baker (1972) 1 All ER 997).