Gang rape of minor student in Manipur

1. CERTAINTY IN SENTENCING RAPISTS COULD REDUCE INCIDENT OF
RAPES IN MANIPUR
N. Brajakanta Singh,
LMS Law College, Imphal.
One sex crime is reported every 20 minutes in India and crime against
women are on increase. Rape has been treated as the most heinous and inhuman act
of sexual assault and violence against a hapless women. It not only amounts to a
brutal attack on integrity and dignity of a woman but also unjustifiably disregards
her legitimate control over her body. It can certainly shatters the values and
foundations of the lives of rape victims. It is opined by some that rape of a woman
is more heinous crime than murder because rape reduces a woman to a state of
living corpse. The recent sentencing of rapists involved in gang-rape of a student
of the T.G.Higher Secondary School by the learned Sessions Judge, Manipur East
can be seen as a good precedent for a real change in rape incidents in our state. The
present article endeavours to examine the judgment of the learned Sessions Judge
who unmistakably sets a precedent for quick disposal of rape cases as well how
Judiciary can play a significant role in arresting rape cases in Manipur.
The crime of rape is committed by a person who has non-consensus or
unwilling sexual intercourse with a woman. It is the ravishment of a woman,
without her consent, by force, fear, fraud or against her will. The provisions
relating to the offence of rape as provided in our penal code has witnessed a
number of changes and the latest being death penalty to gang rapists when the
victim succumbs as a result of the crime. It was felt that surety and severity of the
punishment combined with a message of zero tolerance for rape are the only ways
to control the prospective rapists.
In the T.G School student rape case, two accused were charged for gang rape
covered by section 375(5) of the Indian Penal Code which deals with the offence
of rape with consent given by the victim by reason of unsoundness of mind,
intoxication or under influence of any stupefying or unwholesome substance
administered by the rapists thereby making mentally incapable of exercising her
will or giving consent for the sexual act which is punishable with rigorous
imprisonment for a term not less than 10 years which may extend to life

2. imprisonment under section 376(2)(g) of the IPC. The two accused are also
charged with criminal conspiracy to commit gang rape within the meaning of
section 120B of the penal code which is a substantive offence punishable with
death, imprisonment for life or rigorous punishment for a term of 2 years or
upwards. The learned Sessions Judge has rightly convicted both the accused on
both the counts.
The law is very clear that penetration is sine quo non for the offence of rape.
It was not disproved by the defense counsels, in the case, that the accused persons
did not penetrate. Another point that needs to be dealt with elaborately is whether
the victim had consented or not in the act because a non- consensual sexual
intercourse is the crux of the offence of rape. The victim’s voluntary or free
consent to the act nullifies the charge of rape and the accused would be acquitted.
It was certain that the victim was administered some intoxicant mixed with ‘Appy’
juice drink and the victim felt unconsciousness after consuming it making her
mentally incapable of exercising her will or giving consent for the sexual act.
Consent is an act of reason accompanied by deliberation, a mere act of helpless
resignation in the face of inevitable compulsion, non-resistance and passive giving
in, cannot be deemed to be consent. Consent means active will in the mind of a
person the doing of the act of and knowledge of what is to be done. Under Indian
law, it is for the accused, not for the victim of rape, to prove that the alleged sexual
act was consensual which could not be done by the defense in the present case. A
judge will not accept the plea that the victim has consented to the act if the same
was committed under influence of an intoxicated substance, that too administered
by the accused persons.
In rape cases, it is obvious that victim’s testimony is vital and if it is found to
be natural, trustworthy and worth being relied upon, conviction can be done on the
sole testimony of her without any corroboration. It is now well settled that the
testimony of a girl or a woman who complains of rape should not be viewed with
doubt, disbelief or suspicion. In fact, the very nature of the offence of rape
negatives the possibility of finding direct witnesses and courts can seek for
corroborating only when it finds difficult to implicit reliance on her testimony.
Generally, a woman would not expose her chastity or her reputation by making
false allegations against and accused that she was raped; but there may be very few
instances, as found in our state, where such attempts are made in cases where there

3. is discord between the families of the boy and the girl after elopement regarding
marriage. It is also settled law that testimony of the victim of rape can be treated
without corroboration in material particulars. A rape victim has already undergone
a traumatic experience and if she is made to repeat again and again in unfamiliar
surroundings, what she been subjected to, she may be too ashamed and even
nervous or confused to speak and her silence or a confused stray sentence may be
wrongly interpreted as discrepancies and contradictions in her evidence. In the
instant case, the victim was ashamed to divulge to the police that the accused no. 2
had also raped her in the restaurant in presence of the accused no. 1. There is also a
statutory provision in the form of section 114-A of the Indian Evidence Act that
where sexual intercourse by the accused is proved and the question is whether it
was without the consent of the woman alleged to have been raped and she states in
her evidence before the court that she did not consent, the court shall presume that
she did not consent. The victim voluntarily deposed before the learned Sessions
Judge that she did not consent to the sexual assault done on her by the accused
persons. The learned Judge observed that there is a presumption as to absence of
consent in case of gang rape and it will be presumed that the victim did not give
consent, as this presumption is based on the reasoning that nobody can be a
consenting party to several persons simultaneously in rape.
In respect of criminal conspiracyof the accused persons, the learned Judge
hold that if it were a genuine date between the accused no.1 and the victim, there
should be no occasionand reason for picking up accused no.2 on the way by
calling through mobile phone. It was also confirmed that from the deposition of the
prosecution witness no. 3 that accused no.1 told him that accused no. 2 had planed
the crime, which was not disproved. Presence of accused no.2 in the restaurant was
not disputed rather he commits the crime of rape in presence of accused no.1. He
was instrumental in bringing the juice mixed with intoxicated substanceto be
involuntarily consumed by the victim. The learned Judge observed that all these
circumstances and conductof both the accused persons shows criminal mindset of
them of committing the offence of rape within the meaning of section 120 B of the
penal code. A conspiracyis always hatched in secrecy, direct evidence in proofof
a conspiracy is seldom available and therefore, the circumstances proved before,
during and after the occurrence become relevant in determining complicity of the

4. accused persons. The circumstances and conductof the accused persons are
relevant considerations.
Another significant aspectin the instant case is whether a personcan be convicted
of an offence when the same is not included in the charge? The learned Judge
referring a number of decided cases of the Supreme Court of India held that an
accused can be convicted of an offence even though the same was not included in
the charge, where no prejudice has been caused to the accused and there were
enough materials on the evidence of such offence. The present case also witnessed
the evidentiary value of expert opinion of medical doctorwho examined the
victim. It was rightly held that the medical expert is not a witness of fact but is
called to assist the court to form an opinion on the basis of symptom found on
examination. The doctorhas, in rape cases, to state only whether there was recent
sexual intercourse with the victim and whether there was any injury especially on
her private part. It is indeed difficult for any doctorto say with precision and
exactitude as to when a particular injury was caused and as to the exact time when
the accused may have had sexual intercourse with the victim.
A judge does not preside over a criminal trial merely to see that no innocent
man is punished. He also presides to see that a guilty man does not escape. Both
are public duties which the judge has to perform. Sentencing courts are required to
consider all relevant facts and circumstances bearing on the question of sentence
and impose a sentence proportionate with the crime committed. In view of the
rising crime rate, particularly violent crime against women in the state, the learned
Sessions Judge held that the sentence to be awarded in the present case should be
deterrent one and also commensurate one. He awarded the convicts 15 years
rigorous imprisonment with Rs. 25000/- as fine and in default of payment
additional 3 years rigorous imprisonment for the offence of gang rape and 10 years
rigorous imprisonment with fine amount of Rs. 10000/- and in default of payment
of fine they are required to undergo another rigorous imprisonment for 2 years. To
me it was a loud and appropriate punishment, for gang raping of innocent student
which will definitely set a precedent in the state. This judgment shall discourage
potential criminals as well as repose faith in the judiciary.