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23 Dec 2016

Rape 'sensitivity' prod to courts

R. Balaji, TT, New Delhi, Dec. 22: The Supreme Court has asked courts not to dismiss cases of intra-family rape on technicalities like delayed complaints but act with "sensitivity", keeping in mind how difficult it is for the victims to report such rapes.
It convicted a man of repeatedly raping his nine-year-old niece, ticking off Himachal Pradesh High Court for acquitting him, despite cogent evidence, on the ground that the FIR was lodged after a three-year delay.
"By no means it is suggested that whenever such charge of rape is made where the victim is a child, it has to be treated as the gospel truth and the accused has to be convicted," the bench of Justices A.K. Sikri and A.M. Sapre said.
"At the same time, after taking all due precautions which are necessary, when it is found that the prosecution version is worth believing, the case is to be dealt with (with) all sensitivity.... In such a situation one has to take stock of the realities of life as well."
Sanjay Kumar must now spend 12 years in jail, with a year to be added if a Rs 50,000 fine remains unpaid.
A fast-track court in Chamba had awarded the 12-year sentence for rape and criminal intimidation, as Kumar had repeatedly raped and sodomised the girl.
But the high court acquitted him citing the delayed FIR and "inconsistencies" in the statements of the child and her mother, prompting a state government appeal before the apex court.
Although the rapes had occurred in December 2009 and again two to three months later, the family learnt about it only in September 2012 when the girl complained of severe pain and was taken to a gynaecologist.
The fast-track court noted the victim was just nine when she was raped and 12 when she testified in court, so she could not be expected to remember each detail. It noted that both mother and daughter had stood firm on the basic facts despite close cross-examination.
Justice Sikri, writing the judgment, cited how studies had shown that more than 80 per cent rapes are committed by acquaintances, not strangers.
"Most of the time... when the culprit is a family member, (the rapes) are not even reported for various reasons. The strongest among those is the fear of attracting social stigma," he said.
"Another deterring factor... is that they (the victims) find the whole process of criminal justice system extremely intimidating, coupled with the absence of a victim protection mechanism. Therefore, the time is ripe for bringing about significant reforms in the criminal justice system."
Kumar had pleaded he had been falsely implicated because of a property dispute. The court found "the so-called dispute" too "trivial" for a mother to lodge a false rape complaint, exposing her minor daughter to "risks of serious kinds".
"There is also a dire need to have a survivor-centric approach towards victims of sexual violence, particularly children, keeping in view the traumatic long-lasting effects on such victims," the court said.
"To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime."

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