RAPE AND CHALLENGING CONTEMPORARY THINKING

- Kirthna Madhavan & Bharath SelvaGanesh1

“A murderer kills the body, but a rapist kills the soul”.

-Justice Krishna Iyer

ABSTRACT

Rape is malum in se, which is not only a crime against the victim but also a crime in rem. It
basically affects the Fundamental Right of the victim guarantees under Article 21 of the
Constitution. The main aim of this study is to deal with the offence of rape and its types
recognised globally. Rape is a basic violation of Human Rights and it is subsequently a
violation of self. This article moreover tries to highlight various legislative provisions
governing rape laws in India along with role of judiciary in promoting social justice towards
rape victims. In today’s scenario, rape committed against children below the age of 12 years
has become a routine. In spite of various measures taken by the State in enacting different
anti-rape laws but still the rate of commission of rape can neither be stopped nor be reduced.
According to National Crime Record Bureau, (NCRB) data on the proximity of offenders to
victims (the most recent data available) shows that in 95 percent of all rape cases, the
offender knew the victim and Madhya Pradesh with 4,391 cases, recorded the highest number
of reported rape cases. This study also focuses on the procedure of filing rape case in India
and further deals with compensation payable to victim of rape by Central Victim
Compensation Fund Scheme. Rape is traumatic event in women’s life which affects her
mentally and physically. Is the duty of the State to provide a dignified life to every human
being in this world and to secure a social order for the promotion of the welfare of the people
as conferred under Article 38 of the Constitution.

Keywords: Constitution of India, Compensation, Judiciary, Legislation and Rape victim.

1
The Tamil Nadu Dr. Ambedkar University, Chennai (BCA, LLB (HONS), 5TH YEAR).
 1. CONCEPT OF RAPE

Rape is one of the most odious crimes in this world today. The etymology of the word rape is
derived from a Latin word ‘rapere’. Rape has become a universal crime today which is
having an adverse effect on the society. Rape is an unlawful sexual activity or a sexual
intercourse carried out forcibly or under threat of injury against a person's will or with a
person who is beneath a certain age or incapable of valid consent because of mental illness,
mental deficiency, intoxication, unconsciousness, or deception2.

Rape is not a contemporary issue. It has been witnessed even in the ancient days. The
religious text of Europe has also described the term rape and it states that, women were
considered as a property and any sort of sexual violence committed by men against her are
treated as vandalise.

According to Roman culture, the word rape is derived from a generic term which means
violent theft, implies to both person and property. Rape synonymous known as an act of
abduction or it simply means commission of sexual assault on women forcibly against her
consent. Rape in the English sense of “forced sex” was more often expressed as stuprum, a
sex crime committed through violence or coercion (cum vi or per vim)3.

Where as in India, women were treated as Sakthi and they were considered on equal footing
as that of Goddess. Gradually this view was changed and women were taken for granted and
they were abused physically.

2. TYPES OF RAPE

Law relating to rape differs from one country to another other country. Rape committed in
one country may not be an offence in another country. Hence various categories of rape
recorded globally are;

 Diminished capacity rape: It is a kind of rape committed against a woman who

cannot give consent due to limited intellectual or physical capacity.

2
Merrian webster, https://www.merriam-webster.com/dictionary/rape, assessed on 27/05/2019.
3
4 Gordon P. Baltimore: Johns Hopkins University Press; 2002. Some Unseen Monster: Rereading Lucretius on
Sex, (in) the Roman Gaze: Vision, Power, And The Body; p. 105.
  Age related rape: It is a kind of sexual violence committed on a child who is below
the age of giving consent, it is usually said to be age of 12. The circumstance of each
case decides whether the person is eligible to give consent or not. It is also known as
statutory rape or child rape.
 Incest rape: It is a kind of rape committed by the person who is related to victim by
any family relationship. An example of incest rape is the rape committed between
parent and child.
 Aggravated rape: If a person uses a thread of causing death or severe injury as tool to
commit rape against women without her consent is said to be aggravated rape.
 Acquaintance rape: It is kind of rape committed between two person who are actually
know to each other. This is often known as date rape. The victim and accuse are in a
social relationship at the time of committing offence.
 Gang rape: A sexual violence committed against a women by a group of person in
furtherance of a common intention. The most famed example for gang rape is
Nirbhya’s case.
 Partner rape: Partner rape is also called as marital or spouse rape. This rape is
committed by the spouse without the consent of the other spouse. There are three
types of marital rape;
 Force only rape
 Sadistic rape
 Battering rape

3. CONSTITUTIONAL PARADIGM OF RAPE VICTIM

The Constitution of India guarantees certain Fundamental Rights to its citizen, the most
eminent among them is right to life and personal liberty enriched under Article 21 of the
Constitution, it states that, “No person shall be deprived of his life or personal liberty except
according to a procedure established by law”. This Article ensures ‘dignity of individual’
among other Articles. The State cannot deprive a person’s right to life and personal liberty
other than the procedure established by law. This Article is a positive dimension which
strives towards achieving humanitarianism which basically tries to magnify the quality and
dignity of life to show that right to life is moreover a ‘mere animal existence’.
The human rights jurisprudence presumes that human dignity is one of the key elements of
our Indian Constitution without which the human rights conferred by the State is
insignificant. It further reiterated that Article 21 not only guarantees to live life with human
dignity but also to live a complete and meaningful life with all the basis element of
livelihood.

The Supreme Court of India in Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty, has
given the following ruling, “Rape is thus not only a crime against the person of a woman
(victim), it is a crime against the entire society. It destroys the entire psychology of a woman
and pushed her into deep emotional crises. It is only by her sheer will power that she
rehabilitates herself in the society which, on coming to know of the rape, looks down upon
her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against
basic human rights and is also violates of the victim's most cherished of the Fundamental
Rights, namely, the Right to Life contained in Article 21”4. Thus rape committed on women
infringes her Fundamental Right to life under Article 21.

A land mark judgment was delivered by the Supreme Court in order to protect the dignity of
the women enriched under Article 21 of the Constitution, the Hon’ble Mr. Justice N.N.
Mathur, in this case has laid down certain guidelines relating to criminal investigation and
trail of rape victims. The Court opined: “In order to combat the increasing crime against
women and to ensure protection and preservation of their human rights – the criminal justice
system needs to be addressed from the point of view of systemic victim support service. There
is need to promote proactive role of police as well as trial courts”5.

In Chairman, Railway Board v. Chandrima Das6, in which a Bangladesh woman was raped
by the railway security men, the Supreme Court observed: “Where public functionaries are
involved and the matter relates the violation of fundamental rights or the enforcement of
public duties, the remedy would be avoidable under public law. It was more so, when it was
not a mere violation of any ordinary right, but the violation of fundamental rights was
involved- as the petitioner was a victim of rape, which a violation of fundamental right of
every person guaranteed under Article.21 of the Constitution.”

4 1996 AIR 922, 1996 SCC (1) 490.

5 Suo Motto v. State of Rajasthan, 2000 AIR 988.
6 1996 AIR 922.
According to it, the right to live with human dignity is the Fundamental Right of every citizen
and the State is under the constitutional duty to provide at least minimum conditions ensuring
human dignity7.

4. LEGISLATIVE FRAMEWORK RELATING TO RAPE

The term rape has undergone various changes in today’s perspective globally. The word rape
has been substituted with the word sexual assault and marital rape in other countries. In India,
rape has been recognised as a cognizable offence and there are various provisions under
different laws to govern rape.

4.1 INDIAN PENAL CODE

The term rape has been defined under Section 375 of Indian Penal Code, 1860 it states that, a
man is said to commit “rape” who, except in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling under any of the six following de-
scriptions:—

 It happens without her consent, or

 She agrees, but only because she, or someone she knows is in danger, or
 She agrees, but because she thinks the accused person is her husband, or
 She agrees, but she is drugged, or drunk, or mentally ill, or
 She is under 18 - then it does not matter if she agreed or not, or
 She is in no position to indicate whether she agreed or not - for example, if she is
unconscious8.
Whoever commits an offence of rape shall be punishable under Section 376 of the Act for a
term of imprisonment not less than seven year but may be for or it may extend to ten years
and also liable to pay fine to the victim or both.

If any sexual intercourse made by a man with his wife’s consent it does not amount to rape.
But the wife should not be below the age of fifteen year and should be in such a capacity to
give express consent.

Further, the Indian Penal Code also defines custodian rape9, marital rape10 and gang rape11.

7
Vikram Deo Singh v. State of Bihar, A.I.R. 1988 S.C. 1782.
8 Legal provision relating to rape, Vikaspedia, http://vikaspedia.in/social-welfare/social-awareness/legal-
awareness/legal-provisions-related-to-rape, assessed on 28/05/2019.
Indian Penal Code not only defines the term rape but also prevent the disclosure of identity of
any person against whom an offence under Section 376, Section 376A, Section 376B, Section
376C or Section 376D is alleged or found to have been committed (hereafter in this section
referred to as the victim) shall be punished with imprisonment of either description for a term
which may extend to two years and shall also be liable to fine12.

The Act is imposing a stringent punishment not only to normal layman but also to persons
who are in the position of higher authorities13 such as police officer, public servant, member
of armed force and other authorities prescribed under the Act. Such authorities shall be
punishable under the Act for the commission of any injury or causing death of the victim
during such sexual intercourse.

Section 376E of the Act deals with the punishment for repeat offenders, it states that,
Whoever has been previously convicted of an offence punishable under Section 376 or
Section 376A or Section 376D and is subsequently convicted of an offence punishable under
any of the said sections shall be punished with imprisonment for life which shall mean
imprisonment for the remainder of that person's natural life, or with death.'14.

4.2 CRINIMAL PROCEDURE CODE

The Indian Penal Code deals with the substantive part of law whereas the Criminal Procedure
Code deals with the procedural part of law. This Act had undergone various amendment to
keep it update with the changing needs of the society. The Criminal Procedure Code
(Amendment) Act, 2013 was one of the most significant amendments of the recent days
which were based on the recommendation of Justice J.S. Verma Committee Report. This
amendment mainly dealt with sexual offence and was widely known as ‘ Nirbhya Act.’

The key features of 2013 amendment Act;

 The First Information Report shall be filed by the complainant and entitled to get free
copy of it. In case of rape, the information given by the victim shall be recorded by

9 Section 376 (2) of Indian Penal Code, 1860.

10 Section 376 (A) of Indian Penal Code, 1860.
11 Section 376 (D) of Indian Penal Code, 1860.
12 Section 228 A of Indian Penal Code, 1860.
13 Section 376C of Indian Penal Code, 1860.
14 Section 376 (E) of Indian Penal Code, 1860.
 the women officer. If a police officer refuses to register FIR, then he shall be punished
with a rigorous imprisonment of six month and which may extend up to two years15.
 The statement made by rape victim has to be recorded by the Magistrate as soon as
possible16.
 The medical examination of the rape victim shall be conducted with her consent
within 24 hours of the filing complaint by the registered medical practitioner. The
hospital have to provide all the facilities for conducting such examination and to
provide first aid treatment to the victim at free of cost. If any hospital fails to provide
such facility the person in charge thereof shall be punished with an imprisonment up
to one year or with fine or both17.
 The accused is required to pay compensation to the victim and her dependent for
providing rehabilitation18.
 In camera proceeding has to be conducted with regard to rape case and by female
judge19.
 The accused of the rape victim shall be compelled to undergo a medical examination
by a registered medical practitioner20.
 The rape cases have to be tried in court by a women judge21.
 The statement made by the rape victim can be recorded at her residence or place or
her choice22.

The Parliament in 2018 has made an amendment to the Criminal Procedure Code, 1973. The
main reason behind this amendment was the notorious Kathupa case and Unnao rape case.
Both these incident triggered the dire for the enactment of anti-rape laws in India especially
relating to child rape. This eventually led to the amendment of 2018 Act.

Some of the key features of this amendment;

 Whoever commits rape on a girl below the age of twelve years shall be publishable
with a minimum imprisonment up to 20 years which may extend to life imprisonment

15
Section 154 of Code of Criminal Procedure, 1973.
16 Section 164 of Code of Criminal Procedure, 1973.
17 Section 164A of Code of Criminal Procedure, 1973.
18 Section 357A & 357B of Code of Criminal Procedure, 1973.
19 Section 327(2) of Code of Criminal Procedure, 1973.
20 Section 53A of Code of Criminal Procedure, 1973.
21 Section 26 of Code of Criminal Procedure, 1973.
22 Section 157 of Code of Criminal Procedure, 1973.
 or death. Whoever involves in gang rape of a girl below the age of twelve shall be
punished will death sentence or life imprisonment.
 Section 376 was amended, which increased the punishment from 7 years to 10 years
and the penetrator shall be liable to pay compensation to the victim.
 This amendment made changes to Section 439 of Criminal Procedure Code, which
states that, the Court before granting bail to the accused of rape shall send the
application of bail to the Public Prosecutor.
 No anticipatory bail shall be granted by the High Court or Session Court under
Section 438 of the Act, for the accused of rape on a girl below the age of sixteen.
 This amendment also made provision for speedy investigation and trial within a
period of 2 months and the appeal has to be disposed within a period of 6 months.

4.3 EVIDENCE ACT

The role of evidence act in protecting the victim of rape;

 Evidence of character or previous sexual experience of the victim is not relevant in

certain cases where the question of consent is in issue23.
 If a rape victim in her statement denies her consent to sexual intercourse then the
burden of proving her consent shall shifts to the accused24.
 In cross examination the victim cannot be questioned on her character or previous
sexual history25.
 Questions which tend to insult or annoy the victim shall not be asked26.

5. PROCEDURE FOR FILING RAPE CASE

a) Filing and recording of FIR:

The first step of prosecution commences with lodging of First Information
Record (FIR). Filing of FIR is the most important step for initiation of
investigation. It is not sine qua non27 for filing an FIR in order to commence
an investigation in our country. An FIR can be lodged either by the victim
herself or by her family members. The police investigation shall begin only

23 Section 53A of Indian Evidence Act, 1872.

24 Section 114A of Indian Evidence Act, 1872.
25 Section 146 of Indian Evidence Act, 1872.
26 Section 146 of Indian Evidence Act, 1872.
27 Sin qua non means an essential condition; a thing that is absolutely necessary.
 after lodging FIR. The complained is entitled to get the copy of the FIR from
the police officer at free of cost. Usually FIR can be lodged only in a police
station having jurisdiction to register the crime but with regard to rape cases,
an FIR can be filed even in a police station outside the jurisdiction of crime,
such FIR are known as ‘Zero FIR’. Then it is the duty of the Police Officer to
transfer the complaint to the station having jurisdiction.

b) Delay in filing FIR:

Delay in filing an FIR cannot be a ground for avoiding a complaint filed by
the prosecutrix or her version of evidence. There may be several reasons
which delay filing an FIR. The Supreme Court in several cases made it clear
that, main reason of causing delay may be due to reluctance of the victim and
her family member to go police station and to face the society which also
affect the reputation of the victim. There may be delay in lodging an FIR but if
the cause is properly explained by the victim, such delay is not a matter. In an
instance, there was a delay of six days in telling the incident to the mother and
even after the alleged incident, the girl attended a dancing performance, held
unsafe to convict the accused28.
In State of Punjab v Gurmit Singh29, the trial court found that the testimony
of the prosecutrix did not inspire confidence for the reason that there had been
delay in lodging the FIR and as such the chance of false implication of the
accused could not be ruled out.
In Narayan Saha v State of Tripura30, involved such a situation where there
was a rape of a married woman. The Supreme Court observed that: "In India if
the prosecutrix happened to be a married person, she will not do anything
without informing her husband. Merely because the complaint was lodged less
than promptly, does not raise the question that the complaint was false. The
reluctance to go to the police is because of society's attitude towards such
women. It casts doubt and shame upon her rather than comfort and sympathize
with her. Therefore, delay in lodging complaints in such cases does not
necessarily indicate that her version is false. "

28 Anand Bandhu Kundu v. State of West Bengal, I996, Criminal Law journal 3449 (Cal).
29 AIR 1996 SC at p.1399.
30 (2004) 7 SCC 775.
 c) Investigation
After lodging of FIR then the next step starts with investigation. Where the
complainant shall be called upon to given further information regarding the
event and for identification of the accused. Investigation is nothing but
gathering of evidence against the accused. The evidence given by the victim
and witness during investigation plays a major role in identifying the accused.
In addition to that, the forensic team may survey the crime scene for collecting
any evidence which may be crucial to the case. All the material evidence
collected during investigation shall be recorded in a document known as
‘panchnama’ and it has to be signed by at least two persons.

d) Examination of victim:
Medical examination of victim has to be conducted by registered medical
practitioner as soon as commission of an offence. Examination shall include
the examination of blood, blood stains, semen, swabs in case of sexual
offences, sputum and sweat, hair samples and finger nail clippings by the use
of modern and scientific techniques including DNA profiling and such other
tests which the registered medical practitioner thinks necessary in a particular
case31. The report made by the medical practitioner shall contain the reason for
giving such report and it must be clear and precise in it’s contain. Further the
report has to be forwarded to the investing officer, the investigating officers
has to submit the report to Magistrate without any delay. Examination cannot
be conducted without the consent of the victim or any person eligible to give
consent on her behalf.

e) Examination of accused:
The accused is subject to examination under Section 53 of Criminal Procedure
Code, 1973. The accused can also demand such examination when there is
hope that, the examination shall disprove the allegation filed against him32.
When a person is arrested on a charge of committing an offence of rape or an

31 Rape and law in India, https://shodhganga.inflibnet.ac.in/bitstream/10603/137067/12/12_chapter_03.pdf,

assessed on 1/06/2019.
32 Section 54 of Code of Criminal Procedure, 1973.
 attempt to commit rape and there are reasonable grounds for believing that an
examination of his person will afford evidence as to the commission of such
offence, it shall be lawful for a registered medical practitioner employed in a
hospital run by the Government or by a local authority and in the absence of
such a practitioner within the radius of sixteen kilometers from the place
where the offence has been committed by any other registered medical
practitioner, acting at the request of a police officer not below the rank of a
sub-inspector, and for any person acting in good faith in his aid and under his
direction, to make such an examination of the arrested person and to use such
force as is reasonably necessary for that purpose33. The report should contain
all the particulars of the accused as per the provision of the Act.

f) Arrest
After investigation if the investigating officer is aware of the identity of the
accused and whereabouts, then they may proceed to arrest the accused. All the
suspected accused will be arrested initially but after conducting identification
parade, except the accused remaining suspects are released. Then the accused
person shall send for a medical examination. At the same time the victim may
present a detailed description regarding the crime before the Magistrate. If the
victim or her dependent where able to show that there is a miscarriage of
justice or if they are not satisfied with the investigation procedure they may
make an application to the Magistrate or the High court for getting appropriate
direction.

g) Charge sheet
The charge sheet will be filed, when a case is found to be genuine with all the
appropriate evidence. Once a charge sheet is filed, the police officer will
submit the entire finding before the Sessions Court along with the FIR. Then
finally the case goes to trial.

33 Section 53A of Code of Criminal Procedure, 1973.

 h) Trial
The last stage of the prosecution ends with the trial. Then the case will be
taken over by the Public Prosecutor who represents the victim and the lawyer
of the accused. Both the parties put forth their argument, after submission of
argument examination of victim, witness and accused will be done. The rape
cases are conducted in camera proceeding where public and press are not
allowed to watch the case. When an accused is found to be guilty for
commission of rape, then he shall be punished with imprisonment which may
extend to life sentence. In rare of rarest case, the accused shall be punished
with death sentence. At the same time the accused may be acquitted too when
he cannot be proved beyond reasonable doubt.

6. ROLE OF JUDICIARY IN PROTECTING RAPE VICTIM

Judiciary is one among the three organs of our country. The crucial role of judiciary is to
render justice to the general public. The most important power of judiciary is the judicial
activism thought which they can provide justice. The only power which can promote social
justice is judiciary. They play a significant role in making precedent for the welfare of the
society.

The role of judiciary in rendering justice to women can be witnessed in many case especially
case relating to rape. The victims of rape are not only abused physically but also mentally. It
is the duty of the State to provide justice to them which can be achieved only by the judiciary.

One of much renounced judgment is the Mathura case34, which led to the amendment of
Evidence Act in 1983, (114-A), which allowed the woman’s word to be trusted for her non-
consent; there has been no monitoring of judgments, if the reformed law is followed to the
word35.

Around 1992, sexual harassment at work place was one of the problematic issues faced by the
women working in a concern. The Supreme Court came up with a certain guideline relating
to this issue thought Vishaka Judgment36.

34
(1979) 2 SCC 143.
35 Role of Judiciary in rape case, Academike, https://www.lawctopus.com/academike/rape/#_edn12, assessed
on 2/06/2019.
36 AIR 1997 SCC 3011.
In State of Maharastra v. Madhukar N. Madhukar37, the Supreme Court held that “the
unchastity of a woman does not make her open to any and every person to violate her person
as and when he wishes. She is entitled to protect her person if there is an attempt to violate
her person against her wish. She is equally entitled to the protection of law. Therefore merely
because she is of easy virtue, her evidence cannot be thrown overboard.”

The Supreme Court ordered the lowed court that, when a girl is usually habituated to sex, it
does not describe that she is of lower character and at the same time it doesn’t mean that she
has consented to sexual intercourse with any men38.

At the same time, the Court started to provide relief to the victim not only by rendering
justice to affected women but also by providing compensation and rehabilitation for the
mental agony faced by them. In Chairman, Railway Board v. Chandrima Das39, the court
ordered the accused to pay compensate the victim by paying an interim compensation of
Rs.1000/-.

In State Of Punjab v. Gurmit Singh & Ors40, “The expression that the inquiry into and trial
of rape “shall be conducted in camera” as occurring in sub- section (2) of Section 327 Cr.
P.C. is not only significant but very important. It casts a duty on the Court to conduct the trial
of rape cases etc. invariably “in camera”. The Courts are obliged to act in furtherance of the
intention expressed by the Legislature and not to ignore its mandate and must invariably take
recourse to the provisions of Section 327 (2) and (3) Cr. P.C. and hold the trial of rape cases
in camera.”

7. CHILD RAPE

Child rape is a sexual abuse or violence committed on a child below the age of 12 years. The
child rape is one of the most prevalent social problems faced by the children in today
scenario. 94.8% of rape cases saw children being raped by someone they knew, not strangers
and these acquaintances include neighbours (3,149 cases) who were the biggest abusers
(35.8%) and 10% of case saw children being raped by their own direct family members and

37
AIR 1991 SC 207, 1991 (61) FLR 688, JT 1990 (4) SC 169, (1991) IILLJ 269 SC, 1990 (2) SCALE 849,
(1991) 1 SCC 57, 1991 (1) UJ 109 SC.
38 State of Punjab v. Gurmit Singh, 1996 AIR 1393, 1996 SCC (2) 384.
39 (2000) 2 SCC 465.
40 1996 AIR 1393, 1996 SCC (2) 384.
relatives41. According to the survey of National Crime Records Bureau, in an offence
against women, out of six, four victims are children who are below the age of seventeen.
Various steps were taken by the State in enacting anti-rape laws to stop and to prevent the
commission of rape and additionally it would be essential to enforce the guidelines imposed
in various judgments.

In Sakshi v. Union of India and Ors42, “In holding trial of child sex abuse or rape:

(i) a screen or some such arrangements may be made where the victim or witnesses (who may
be equally vulnerable like the victim) do not see the body or face of the accused;

(ii) the questions put in cross-examination on behalf of the accused, in so far as they relate
directly to the incident should be given in writing to the Presiding Officer of the Court who
may put them to the victim or witnesses in a language which is clear and is not embarrassing;

(iii) the victim of child abuse or rape, while giving testimony in court, should be allowed
sufficient breaks as and when required.”

The apex court has directed trial courts to effectively control the recording of evidence in
rape trials and not let defence counsels intimidate the victim with offensive questions. “A
murderer destroys the physical body of a victim but a rapist degrades her very soul,” former
CJI A.S. Anand said in one judgment.

Further the Supreme Court has also ordered the High Court to provide child friendly court
and also ensure speedy investigation for deposing the case within a shorter span of time. The
bench, headed by Chief Justice Dipak Misra, also ordered the creation of task forces to
investigate the fast-track cases and that they be decided by special courts43.

41 Recent statistics of child abuse, https://www.savethechildren.in/resource-centre/articles/recent-statistics-of-

child-abuse, assessed on 1/06/2019.
42
AIR 2004 SC 3566, 2004 (2) ALD Cri 504.
43 India's Supreme Court Orders Speedier Investigations of Child Rape
Cases,https://www.voanews.com/a/indian-supreme-court-orders-speedier-investigation-of-child-rape-
cases/4372187.html, assessed on 2/06/2019.
 8. COMPENSATION TO VICTIM OF RAPE

The victims of rape and other related sexual offences are disturbed mentally and physically.
They are needed to be compensated to live their live with dignity as conferred under Article
21 of the Constitution. There are many judgments delivered by the Court in rendering justice
to them this also include judgment relating to pay compensation to the victim. Moreover it is
the duty of the State to take measure and to enact law protecting the rights of the rape victim

A Public interest litigation was filed under Article 3244 of the Constitution exposing the
pathetic dire of rape committed on four domestic workers in a moving train. The Hon’ble
Supreme Court of India on relying upon Article 38 of the Constitution and Criminal Justice
Act of United Kingdom stressed the dire need to establish a Board known as Criminal
Injuries Compensation Board (CICB), to provide adequate compensation to victim of rape
in spite of the offender is acquitted45. However, still there is no any positive response taken
by the Board to give compensation to victim.

The Supreme Court of India in order to secure complete justice through article 142 46 of the
constitution, suo motu gave effect to the right of a rape victim to claim compensation from
the offender for violation of her constitutional right to live with human dignity47.

Further the Criminal Procedure Code also strives to promote the rights of the victim by
imposing the accused to pay compensation. The provision under Criminal Procedure Code
which deals with compensation are Section 357, 357A, 358, 359, and 250. Along with this,
the Constitution of India also guarantees payment of compensation through Article 14 and 21.

When the guilt of the accused is proved in the Court of Law, then the court shall order the
payment of compensation48 in the following way;

 Compensating for the expenses incurred during litigation.

44
State to secure a social order for the promotion of welfare of the people.
45
Delhi Domestic Working Women's Forum v. Union of India & Ors, 1995 SCC (1) 14, JT 1994 (7) 183
46
The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary
for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made
shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law
made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order
prescribe.
47
Ibid 4
48
Section 357 of Criminal Procedure Code, 1973.
  Compensation for loss or injury to be recovered by the civil court.
 Compensation in case of death
 Compensation of victim of crime in offences like theft, cheating, criminal breach of
trust, etc.49.

8.1 CENTRAL VICTIM COMPENSATION FUND SCHEME

The Central Victim compensation Fund (CVCS) is established by the Central government in
the year 2015 for the purpose of payment of compensation as may be determined.

The following are the steps required to be followed by the applicant in order to claim
compensation;

1. The victim or her family member can make an application to the District or State
Legal Service Authority
2. The District or State Legal Service Authority will scrutinize the content of the
application
3. The quantum of compensation shall be decided by the authority
4. Disbursement of compensation to the victim takes place in the following way

 The amount of compensation so awarded shall be disbursed by the respective

Legal Service Authority by depositing the same in a Nationalized Bank in the
joint or single name of the victim/dependent(s).
 Out of the amount so deposited, 75% (seventy-five percent) of the same shall
be put in a fixed deposit for a minimum period of three years.
 The remaining 25% (twenty-five percent) shall be available for utilization and
initial expenses by the victim/dependent(s), as the case may be.
 In the case of a minor, 80% of the amount of compensation so awarded, shall
be deposited in the fixed deposit account and shall be drawn only on
attainment of the age of majority, but not before three years of the deposit50.

49Compensation of victim of crime in India, https://blog.ipleaders.in/compensation-victim-crime-india/,

assessed on 2/06/2019.
50
Ibid.
 9. CONCLUSION

Rape is a crime against the society, at this moment, we have realise that we are the
predominant reason for this situation, where a girl is not secured in this society. The State has
to take this issue as a serious concern and they have to choose an appropriate machinery to
strive this situation. The attitude of the society must be changed, so that when a woman is
alone it shall be the responsibility of the society to protect her rather than taking it as an
opportunity to abuse her. According to National Crime Report Bureau, India records 106
rapes a day and four out of every ten victims were minors and also indicate that more and
more rapes are being reported every year, among these 38,947 cases, in 36,859 matters,
accused are related to the victims. Therefore there is no need in changing laws of the country,
changes must be brought in the mind of the people so that this situation can be changed.