June 2021 – Page 14

About the Journal

The NLIU Law Review is the flagship journal of the National Law Institute University, Bhopal. It is a peer-reviewed academic law journal, published biannually by the students of the University. The Law Review aims to promote a culture of scholarly research and academic writing by bringing to the forefront, articles on subjects of interest to the legal profession and academia.

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Call for Papers:

NLIU Law Review is now accepting submissions of manuscripts for publication in Volume XI, Issue I of the journal.

Theme:

The Law Review does not restrict itself to any particular area of law and welcomes contributions from all branches of law, as long as the work is relevant, up to date and original.

Submission Guidelines:

A. Types of Submissions accepted by the NLIU Law Review:

Manuscripts on any topic of contemporary legal relevance meeting the below-mentioned criteria:

Articles: 5,000-10,000 words
Case Notes: 2,000-5,000 words
Legislative Comments: 1,000-3,000 words
Book Reviews: 1,000-3,000 words
The word limit is exclusive of the abstract, and exclusive of footnotes.

B. General Submission Guidelines:

Manuscripts submitted to the journal must not be co-authored by more than two persons.
Manuscripts must include an abstract of 250-300 words. The abstract must highlight the structure and the essence of the manuscript.
All submissions must be in .docx format. They must be word processed and compatible with Microsoft Word 2007 or above.
The manuscript should not contain any information that can be used to identify the author.
Manuscripts not in conformity with these guidelines may be rejected at the sole discretion of the editors. The editors reserve the right to send the manuscripts back to the authors for any modification(s) at any stage, in the event of non-conformity with any of the submission guidelines.

C. Citation Standards:

Citations must strictly conform to the standards laid down in the Oxford University Standard for Citation of Legal Authorities (4th ed., 2012).
Submissions must use only footnotes as a form of citation.
Speaking or substantive footnotes are highly discouraged.

Who is it For?

Professionals, academicians, research scholars and students.

Submission Process:

All submissions are to be made only through the electronic form available at nliulawreview.nliu.ac.in before 23:59 hours on July 18, 2021.

Deadline:

July 18th, 2021

Contact Details:

In case of any queries, please drop an email at lawreview@nliu.ac.in or contact the following persons:

Utsav Garg: Editor-in-Chief (+91 9650101793)
Anoushka Ishwar: Deputy Editor-in-chief (+91 8879498658)

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About SJCL:

Established in the year 2017, St. Joseph’s College of Law is the pioneer Jesuit law college in South Asia that is strengthened with a 450-year-old legacy in imparting quality education through the Jesuit mission of molding students into ‘people of competence, conscience and compassion dedicated to the service of faith and the promotion of justice’.

In pursuance of the noble Jesuit motto – fide et labore, St. Joseph’s College of Law was founded on the ideals of practicing law, promoting justice and to transform society. Emboldened with a vision to ‘transform the lives of people by bringing about a just and egalitarian society’, the College believes in a steadfast focus to bridge law and governance with a human rights approach. The College, though neoteric, has been able to work towards these set ideals.

The Moot Court Society, through its various inter and intra collegiate events, aims to achieve and fulfill the objectives of the institution by encouraging a sound mooting culture, which has at its center, justice, and equity.

About the Competition:

The 1st St. Joseph’s College of Law National Level Moot Court Competition, 2021 has been conceived with the aim of creating opportunities for learning the development of jurisprudence on emerging trends in Intellectual Property Law and allied areas besides developing cutting edge skills in research, writing and advocacy.

Date of the Moot: 17 July & 18 July 2021.
Venue: The competition will be conducted virtually.

Eligibility:

The competition is open for students who are studying LLB 3-year or 5-year course during the current academic year.

Team Composition:

1. Each team should consist of a minimum of 2 and a maximum of 3 members. This number cannot be modified under any circumstances.
There shall be 2 speakers and 1 researcher designated for each team. The researcher shall be allowed to argue with the prior permission of the court and organisers in case of illness of the designated speakers.

Registration Process:

Last Date of Registration: 28 June 2021.

The teams must register online by 28 July 2021. The 1st St. Joseph’s College of Law National Moot Court Competition, 2021 will be considered in two stages – Phase I and Phase II. The details pursuant to the same are contained in the brochure and rule book for your perusal.
Registration fees will be accepted through the online mode only, that is through the link provided. No other payment method will be allowed. Participants will receive an acceptance of their request for participation via mail.
Once registered, the concerned registration fee would neither be refunded nor waived. All updates will be communicated to the contact person as mentioned in the registration form. It is the responsibility of the contact person to distribute and communicate any contingent updates to the team.

Deadline:

June 28th, 2021

Official Details:

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About the Centre:

The Centre for Research in Criminal Justice (CRCJ) was established to promote and advance national and comparative research and scholarship in the area of Criminal Law and Criminal Justice, Criminology, Victimology, International Criminal Law and Human Rights. Key objectives of the Centre include researching, analysing and critically examining the laws, policies, and programs related to criminal laws, communicating the findings and recommendations to the agencies of Government concerned with the same and disseminate the finding through publications, workshops, seminars, and other means.

Call for Blogs:

The Centre for Research in Criminal Justice of Maharashtra National Law University Mumbai invites contributions for its blog, MNLUM Criminal Law Review Blog. We welcome submissions from Academicians, Legal Practitioners, Research scholars, Law Students on the topic of criminal law with a significant implication on international or domestic criminal law and interdisciplinary work.

Submission Guidelines:

General Guidelines

The submission should be between 1200 – 1500 words. Longer pieces will be considered for publication of the content so requires and the quality is ensured. Keep your title brief. Please ensure that the title clearly communicates the topic and conveys the essence of the piece to the reader.
The articles should be submitted as a Word document (in .doc or .docx format) by filling out the Google form which can be accessed here. Any submissions made through email will not be considered for the review process.
While formatting the document, the author(s) should keep the following things in mind:
- Font Size: 12 pt., Font Style: Times New Roman and Line Spacing: 1.5 lines
- All the relevant authorities should be duly acknowledged and hyperlinked in the text of the submission itself. If hyperlinks are not available, then end notes (Bluebook 20^th edition) can be used.
- We encourage authors to use section headers in bold font to break up the text and guide the reader.
The submission should be an original work of the author and not under consideration for publication in any other journal or blog. Plagiarism > 20% will be a ground for rejection.
Co-authorship is allowed up to two authors.
The authors must ensure that their names, institutional affiliation and other personal information is not present in the submitted manuscript.
All content must be submitted in English. That said, once approved for publication, we are happy to post a translated copy(-ies), provided that the translation is done either by the author(s) herself/himself, or through a trusted third party of the author’s own accord. Please note that any translated version(s) will be posted alongside, rather than in lieu of, the English version. The journal strongly encourages authors to avail of the opportunity to translate their text into the working language of the context of interest, so that the post can reach more audiences.

Review Process

The review process is a two-stage double-blind peer review.
The board would look into various factors like relevance to the theme of the blog, accuracy of facts, depth of analysis, coherence in arguments and lastly, language and structure of the content.
Generally, the author(s) will be intimated about acceptance/rejection within 7 days of submission. However, under exceptional circumstances the review process may take up to 10 days.

Contact Details:

In case of any queries mail us at mnlumcrlawreview@gmail.com .

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The Delhi High Court in its judgments dated fifteenth June found that offences below the Unlawful Activities Prevention Act (UAPA) aren’t made out clear against student leaders Asif Iqbal Tanha, Natasha whale, and Devangana Kalita within the Delhi riots conspiracy case.

In the 3 separate orders delivered permitting the bail applications of Tanha, whale, and Kalita, the court has undertaken a factual examination of the allegations to determine if a prima facie case is formed out against them for the needs of Section 43D(5) of UAPA. However, a judicature bench comprising Justices Siddharth Mridul and Anup Jairam Bhambhani, once a preliminary analysis of the charge sheet discovered that the allegations don’t represent the alleged UAPA offences concerning terrorist activities(Sections 15,17 and 18). Therefore, the division bench aforesaid that the rigor of Section 43D(5) of the UAPA against the grant of bail wasn’t attracted against the accused, and thus they were entitled to grant of bail below the normal principles under the Code of Criminal Procedure.

These 3 student leaders have spent over an amount of 1 year in Tihar jail, even amid the 2 deadly waves of the COVID pandemic. The profit of interim bail on account of the pandemic wasn’t on the market to them as they were defendants below the UAPA. After Natasha narwal lost her father Mahavir narwal to COVID last month, the judicature had granted her interim bail for 3 weeks to perform the observance rites.

-Report by Manaswa Sharma

As the police failed to complete an inquiry within 6monThs of the prescribed period against the journalist Siddique Kappan & 3 others, who were accused of breaching the peace after their arrest on Oct 5/20. The Mathura local court decided to stop the proceedings against them.

Kappan who is a Kerala-based Journalist was arrested with his associates when they were on the way to meet the family of a Dalit girl involved in Hathras case who was raped, murdered, and cremated by UP police in secrecy. They are also activists of the Popular Front of India (PFI), which is a Kerala-based Islamic organization, they were charged with threats to peace by UP police and further booked under sedition, violation of UAPA and IT Act. This year, in April, a charge sheet against 8 of them including Kappan was filed in a local court in Mathura, sub-division Magistrate.

Maant, Ram Datt on Tuesday discharged accused Atikurrahman, Aalam, Kappan, and Masood. They have been discharged from charges under Criminal Procedure Code (CrPc) Sections 151 (Arrest to prevent the commission of cognizable offences), 107 (Security for keeping the peace in other cases), and 116 (Inquiry as to the truth of information). They were in jail since October 7/20 under Sections 153A (promoting enmity between groups), 295A (outraging religious feelings), 124A (sedition), 120B (conspiracy) of IPC, 17/18 of UAPA (raising funds for the terrorist act), and under the IT Act.

Kappan’s family and the Kerala Union of Working Journalists (KUWJ) said that the accusations were false and frivolous. This year in April, the family moved to the Supreme Court pleading that he was being mistreated in a hospital in UP where he was admitted due to Covid-19.

-Report by Saksham Srivastava

A petition was moved in the Hon’ble Delhi Court, to have some constructive approach from the Ministry of Health External Affairs, to get assisted for availing a tourist visa from the High Commission of Australia. The whole sole objective of filing this petition was to provide better medical assistance to the petitioner’s son, who is residing in Australia.

The petition has been moved by a widow, to procure help for a Tourist Visa from the Australian High Commission as her son is suffering from End-Stage Renal Failure and is in a critical condition. He is even admitted to St Vincent Hospital, Melbourne on June 8. The plea is solely directed towards the Union of India, via the Ministry of External Affairs to assist the petitioner from getting Visa Visitor (Tourist) subclass 600 from Australian High Commission.

Her plea clearly stated that despite such critical condition of her son suffering from such deadly disease, there has been no such positive response to her applications from both, the Ministry of External Affairs, India & the Australian High Commission. The petitioner also requested help, from the Ministry of External Affairs by contacting and supervising the hospital authorities in the ongoing medical treatments.

-Report by Saksham Srivastava

The present case analysis has been done by Vanshika Arora.

Case Number

Appeal (civil) 1382 of 2002

Equivalent Citation

2002 (1) RAJ 381 (SC)

Bench:

Hon’ble Justice GB Pattanaik, Hon’ble Justice SN Phukan, Hon’ble Justice SN Varivan

Date of Judgment:

20th February 2002

Relevant Act

Arbitration and Conciliation Act, 1966

Relevant Sections

Sections 4, 5, 10, 11, 16, 34

Facts of the Case

The Appellant and Respondent had a family dispute over business and properties. For which two arbitrators were hired (Mr. Pramod Kumar Khaitan, and Mr.Sardul Singh Jain). An award was passed by the two arbitrators on 6th October 1996. On 22nd December 1997, the first respondent filed an application in Calcutta High Court for setting aside the award. The contention was that, under Section 10 of The Arbitration and Conciliation Act, 1966, an even number of arbitrators cannot be present. Since in the present matter, two arbitrators were present, it was contended that arbitration was void and invalid. On the same line of reasoning, it was also contended that the award is henceforth also void and invalid. A single judge of the Calcutta HC set aside the award on 17th November 1998, subsequently, an appeal dated 18th May 2000 was also dismissed. Thereon, the matter was bought before the SC.

Issues before the Court

Whether Section10 is a non-derogable provision in Arbitration? Whether a mandatory provision of the Act can be waived by the parties?

Ratio Decidendi

The appellant contended that Section 10 is a mandatory provision of the Act. In the present matter, the Arbitral tribunal was not validly constituted, hence it should be void and invalid. Moreover, if the constitution of the arbitrators is invalid, it should also render the award void. The appellant also contended that Section 16 does not provide for any challenge of the constitution of the Arbitration Tribunal. Therefore, an invalidly constituted tribunal deems lack of jurisdiction. It was also contended that in the case of an even number of arbitrators, they may have conflicting opinions, which may result in a fresh arbitration altogether. This could be a waste of time and energy for both parties, and an infringement of public policy. Hence, Section 10 should be considered a non-derogable provision. In the court’s opinion, that the question, whether Section 10 is non-derogable would depend on whether a party has a right to object to the composition of the arbitral tribunal, and at what stage.

The decision of the Court

The court held the contention of Section 10 is a non-derogable provision, unacceptable. Since it cannot be said that an arbitration agreement becomes invalid when only two arbitrators are appointed. In such a case, Section 11(3), the two arbitrators can appoint a third one. The court held that an appointment of the third arbitrator can be done at a later stage, i.e when the two differ, and need not be mandatorily done at the initial stages of the agreement. Further, the court held that an award can only be set aside under the provisions of Sections 12, 13, 16, and 34. An award cannot be set aside if the composition of the arbitral tribunal and proceedings are in accordance with the agreement between the parties. The right to challenge an award, in case tribunal and proceedings are not in accordance, is also restricted. In a sense that, even if the composition of the arbitral tribunal or the arbitral procedure is not in accordance with the agreement of the parties but if such composition or procedure is in accordance with the provisions of the Act, then the party cannot challenge the award.

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The Present article has been written by Gracy Singh, pursuing BA. LL.B.(Hons.)(2nd year) from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

INTRODUCTION

India used to believe in the concepts like “Matri Devo Bhava” (the woman is revered to God), and “Yatra naryastu pujyante ramante tatra, Devata, yatraitaastu na pujyante sarvaastatrafalaah kriyaah” (Divinity blossom where women are honored, where women have dishonored all actions remain unfruitful). This concept seems to disappear in the present time as the number of sexual offenses against women keeps increasing. One such sexual offense which has become the most common crime in India is Rape. It is the most heinous crime as well as a huge disgrace to humankind. Rape means having sexual intercourse without the consent of another person.

According to National Crime Records Bureau’s (NCRB), 88 rape cases per day, and 32,033 in the year were reported in India in the year 2019. The list is topped by Rajasthan (6,000 rape cases), and Uttar Pradesh (3,065 rape cases). These are reported cases there are the majority of crimes against women committed by know people such as family members, friends, and neighbors; whereas in some cases victims are coerced by their families to keep silent. Who should be blamed for this?

LAWS REGARDING RAPE IN INDIA

India Penal Code, 1860 –

In the Indian Penal Code, Section 375 states that rape is said to have been committed when a man has sexual intercourse with a woman without her consent or against the free will or obtains consent by force, fear of death, or by making her believe that the person is married to her, during the unsoundness of her mind, or intoxication.

The Criminal Law (Second Amendment), 1983

In the case, Tukaram v. the State of Maharashtra commonly known as Mathura Rape Case, a girl Mathura aged between 14-16 years, was raped by two police constables. Her family filed a case against two constables. The court said that Mathura did not call out for help and there were no visible marks on her body, so the act was consensual. The court further added that she was habitual to sexual intercourse.

This case triggered endless violence across the nation; it was observed that the verdict given by the court was not sensible, legitimate, and linguistic. Women started protests demanding modification in the law.

In 1983, The Criminal Law (Second Amendment) was brought that amended the Indian Evidence Act, Section 114 (A) was added stating that if the victim says that there was no consent, the court shall presume that there was no consent given. Custodial Rape was made punishable, and the character assassination was prohibited of the rape victim in court by this amendment.

Amendment to Indian Evidence Act, 2002

In 1983, character assassination was prohibited but cross-examination of the rape victim was not defined. An NGO, Sakshi filed a PIL pointing out the humiliation, dishonor of the sexual integrity, and personal space faced by the victims during trials in the court.

Later, the Supreme Court ordered the Law Commission to review rape laws and to recommend the changes. As per Section 155(4) of the Indian Evidence Act, 2002, a defense lawyer could dishonor the testimony by proving the immoral character of the victim. Therefore, this clause was amended in 2002, and the cross-examination of the victim was prohibited.

Protection of Children from Sexual Offence Act (POCSO), 2012

As per the statistical data, Indian reported a 336% increase in child rape cases from 2001 to 2011. NCRB statistics showed that 48,338 child cases were reported during this period. This led to an urgent need for a law for child victims of sexual offenses. It is gender-neutral and includes the abetment of child sexual abuses, sexual harassment, child pornography, and non-penetrative assault. Hence, POCSO (Protection of Children from Sexual Offenses Act) was passed in 2012. This Act made the police in charge to ensure the protection of the child during the investigating process, and provide medical treatment in emergencies. Also, the courts were allowed the conduct the in-camera trial without revealing the true identity of the child. The Act also made it mandatory to report child sexual offense cases.

Criminal Law (Amendment) Act, 2013

In 2012, Mukesh and Anrs. v. NCT Delhi and Ors. a 23-year-old girl was brutally gang-raped in a moving bus, which led to her death. This led to protest in the country, demanding not only amendment in the laws but also the perspective towards rape. It became a women’s rights issue in India. This case also led to reconsider the laws as well as realizing that still there are many crimes against women that are not mentioned in our legal framework such as stalking, voyeurism, acid attacks.

This led to the Criminal Law (Amendment) Act, 2013, that added stalking, voyeurism, and acid attacks into the definition of rape, a threat to rape is also considered as a crime. The punishment for rape was changed from seven years to ten years, in case of vegetative state or death of the victim, the punishment was increased to 20 years. The age was changed from 18 to 16 to the Juvenile Justice Act for being tried for crimes like murder, and murder since one of the accused in this case was minor.

Criminal Law (Amendment) Ordinance

In 2018, an 8 years old girl was gang-raped and murdered by two men and a juvenile in Kathua, a district in Jammu and Kashmir. This case led to outrage among the masses in the nation. An amendment was brought in POCSO, and made rape punishable of a child below 16 years, as well as the minimum punishment, was made 20 years of imprisonment and death penalty in case of death of a child below the age of 12. The fast-track clause was amended from a year to six months.

PROBLEMS IN THE RAPE LAWS

Justice delayed, justice denied

In the case of the Delhi Medical student rape case, the fast-track court was set up, and it wrapped up the proceedings of the case within eight months. The convicts were given the death penalty but it took more than seven years to hang them. In 2019, more than 1.66 lakh cases are pending in Fast Track Courts; there will be no final closure even though all the legal formalities are completed and judgment is passed by FTCs. Fast-track justice could instill fear among the people.

Gender Biased

It is time for society to understand and accept that men can also be the victim of trape. The most affected groups by the gender-biased laws are transgender and non-binary persons who more often face abuse and sexual assault. Lawmaker needs to understand that any person can be a victim and a perpetrator. Law should not be amended to claim that both men and women are affected by rape in the same manner rather an amendment should change the way society sees gendered stereotypes of sexuality.

Botched investigations, few convictions

The police are considered shoddy as they do not know how to collect evidence like samples, photographs, fingerprints, and the crime scene is rarely protected. This results in poor prosecutions, few convictions, and amiable jail terms for offenders who are convicted.

Stricter Laws

In India, rape is a common crime, the majority of cases go unreported. The accused in most of the cases are known or trusted people. As the laws are made stricter and also have the death penalty in some rape cases, victims are murdered so that they cannot tell or lodge a complaint against the perpetrators.

The Legality of Child Marriage

The Supreme Court read exception 2 of section 375 and held that an act of sexual intercourse of a man with his minor wife will amount to rape. A marriage between a minor girl with an adult is voidable at the girl’s choice but it not completely void. Child marriage is granted legitimacy. Therefore, an adult can have sexual intercourse with his minor wife, but unless it is not reported this will not be a crime. In India, the probability is that number of such cases will remain unreported. But declaring child marriage void could stop this crime against minors.

Statutory Rape

It is defined under Section 375 of the Indian Penal Code states that if any man has intercourse with any girl below 18 years, with or without her consent will constitute statutory rape.

There is no difference left between sex between an adult and a minor, or two consenting minors because minors are considered to not have enough knowledge to give consent for sex. In such cases, sometimes the boys involved are unjustly convicted under the statutory rape clause. In a case, the Madras High Court said as obiter dicta that sexual activities between minors above the age of 16 should not be criminalized.

Marital Rape

India is one of 36 countries where marital rape is legalized. However, the UN Committee on Elimination of Discrimination Against Women (CEDAW), as well as the Justice Verma Committee, recommended criminalizing marital rape. Still, there is no law to protect women from marital rape. It violates the right to live with dignity (Article 21), and the right to privacy, only women below or 18 years of age are protected from marital rape but what about the women above 18 years?

Case Study –

Kajal (not her real name), Madhya Pradesh

Kajal, a rape victim who was 23, said that after she filed a complaint of gang rape in the Neemuch district of Madhya Pradesh, she, and her father was detained, threatened, and beaten up by the police. She was slapped, beaten up with a stick, and compelled to sign on several blank papers, and forced to give a false statement in court or her father will be arrested on false charges. Police filed a closure report stating that Kajal and her father had filed a false case against the man accused because of the land dispute between them. However, the closure report was rejected, and the investigation officer was summoned by the chief judicial magistrate.

Due to threatening from the accused Kajal’s parents asked her to move away from their home before her in-laws abandoned her when she filed a report of rape. When she was in urgent need of medical and counseling support but she was not provided with any referral for counseling.

CONCLUSION

Many changes have been brought in rape laws since 1860 and tried to bring the change in the existing condition of women but still, there are changes required such as criminalizing marital rape. Some laws end up having some negative effects. Every time a big rape case is noticed, the nation is shaken by the outrage and public demanding modification. However, many unreported cases also do not get similar public attention. In current rape laws changes and additions are required. It is time to bring some changes and fight this evil proactively.

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The present article is written by Muskan Harlalka, a 2nd-year law student from the School of Law, Mody University of Science and Technology, Lakshmangarh, Rajasthan.

INTRODUCTION

An accomplice is a person who intentionally and voluntarily aids another person in committing a crime and thus ends up becoming equally guilty for the crime.

The Indian Evidence Act 1872 deals with evidence from an accomplice, but the Act does not define the word ‘accomplice’. The judiciary has tried to define this word in various cases. In RK Dalmia v. Delhi Admin, the Apex Court said that a person who participates in the committing of the crime with which the accused is charged is an accomplice.

However, there are two cases in which a person can be regarded as an accomplice even when he is not a partner in crime. In cases where the person has received stolen property, he is considered to be the accomplice of the thieves who have stolen the property. Also, accomplices in previous similar offences are taken to be accomplice in the offence for which the accused is on trial if the evidence of the accused having committed crimes of similar nature on previous occasions is admissible to prove the intent of the accused in the offence charged.

An accomplice becomes an ‘approver’ when he becomes a prosecution witness and is granted pardon under Section 306 of the Code of Criminal Procedure (CrPC).

CATEGORIES OF ACCOMPLICE

For a person to be regarded as an accomplice, he has to be a particeps criminis, i.e., a partner in crime. The modes of participating in a crime can be divided into two broad categories. These categories are:-

The principal offender of first degree or second degree: A principal offender of first degree commits the crime whereas a person who is present at the time of the commission of the crime and aids or abets the commission of the crime is a principal offender of the second degree.
Accessories before the fact or accessories after the fact

Accessories before the fact: An accessory before the fact is someone who incites, abets, counsels or encourages the commission of a crime but himself does not participate in its commission.
Accessories after the fact: An accessory after the fact is someone who, being aware of the fact that a person has committed a crime, receives or comforts or protects that person and assists him in escaping arrest or punishment.

EVIDENTIARY VALUE OF THE ACCOMPLICE’S EVIDENCE

Section 133 and illustration (b) of Section 114 of the Indian Evidence Act 1872 talk about the evidentiary value of the evidence given by an accomplice. As per Section 133 of the Act, an accomplice is a competent witness and a conviction based on his testimony will not be illegal merely because the testimony of the accomplice is uncorroborated. On the other hand, according to illustration (b) of Section 114, the testimony of the accomplice will not be considered credible unless verified in material particulars.

Though it may seem so, there is no contradiction between the two provisions. Section 133 enables the judiciary to convict the accused based on the uncorroborated testimony of the accomplice. However, as the accomplice himself is a participant in the crime, his testimony may not always be reliable. Thus illustration (b) of Section 114 provides that if necessary, the court can presume the testimony to be unreliable unless it gets verified by some independent evidence.

ACCOMPLICE EVIDENCE IN SEXUAL OFFENCES

Corroboration is the common point between an accomplice and the prosecutrix of a sexual offense because the evidence was given by a prosecutrix also requires corroboration like that of an accomplice. However, the evidence of the prosecutrix is different. Her evidence is equivalent to the evidence of an injured person. She is not an accomplice, but a competent witness.

In Rameshwar Kalyan Singh v. State of Rajasthan, the Supreme Court stated that, in case of rape, the prosecutrix cannot be treated as an accomplice. The Indian Evidence Act does not state that the evidence by a prosecutrix in cases of sexual offence needs to be corroborated but the judiciary insists on the need for corroboration as a matter of practice. The corroborative evidence should be such as to ensure that the evidence of the prosecutrix will be lawfully acted upon. However, it was felt that it would be impossible and dangerous to state or declare what kind of evidence can be regarded as corroboration.

The nature of corroborative evidence varies from case to case, but the Court has given some guidelines in this regard. These guidelines are as discussed below:

There must be some additional evidence that can ensure that the testimony of the accomplice is true and it is safe to act upon the testimony.
The independent evidence must be able to establish a connection with the accused by confirming the testimony of the complainant or the accomplice that the accused committed the crime.
Ordinarily, the testimony of one accomplice cannot act as a corroborative evidence for another accomplice. In other words, it can be said that the source of the corroborative evidence must be independent. But if the circumstances are such as to make it safe to depend on the testimony of one accomplice for corroboration of another accomplice’s testimony, then a conviction on such basis will not be illegal.
The corroborative evidence does not need to be direct so as to prove that the accused committed the crime. Mere circumstantial evidence that connects the accused with the crime is sufficient.

In State of Madhya Pradesh v. Sheodayal Gurudayal, the Court laid down a test to determine the necessity of corroboration of the testimony of the prosecutrix. The test is based on the authenticity of the declaration given by the prosecutrix. If the testimony of the prosecutrix appears to be genuine then there is no need for corroboration. However, if any part of the testimony appears to be artificial or exaggerated, corroboration will be needed. It is to be noted that these principles are not rigid and are to be viewed as guiding principles in cases related to sexual offences.

CONCLUSION

It is true that sexual offenses cause great suffering and humiliation to the victim, but at the same time, a false allegation can cause equal distress and humiliation to the accused and ruin his life. Thus, protecting an accused person from a false implication is equally important. The guiding principle for accomplice evidence that is followed in India is that although it is not illegal to convict an accused based on the uncorroborated evidence by an accomplice, it is unsafe as per the rules of prudence. This guiding principle, though clear, is subjective in nature because different judges might have different levels of corroboration and given the lack of any strict rules relating to the extent of corroboration, this subjectiveness can lead to injustice.

BIBLIOGRAPHY

Accomplice, Encyclopaedia Britannica (Nov. 10, 2011), https://www.britannica.com/topic/accomplice.
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The present article has been written by Prateek Chandgothia, pursuing BA. LL.B. (1st year) from the Rajiv Gandhi National University of Law, Punjab.

India witnessed one of the gravest rape cases in December 2012 which shook the national capital and subsequently the whole of India. Wide-spread protests broke out through the country demanding the justice of the rape victim, who was designated with the title of Nirbhaya for the level of mental toughness and endurance portrayed by her. Various legislations were passed in the aftermath of the incident as the four accused were awarded the death penalty and were hanged to death on 20^th March 2020. The 8-year long wait for justice paints a disturbing picture of the Indian criminal justice system and indicates the necessity of speedy trials in rape cases.

Legislative Analysis of Rape Laws

The Indian Penal Code criminalizes rape as a sexual offense under Section 375-377. Rape is defined under Section 375 of the IPC as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case if she is under 18 years of age.” The Criminal Law (Second Amendment) Act was enacted in 1983 which marked a paradigm shift like the rape laws in India by strengthening the position of women in such cases. Section 114A was introduced in the Indian Evidence Act of 1872 which stated that it must be presumed that there is the absence of consent in certain prosecutions of rape if the victim says so. Furthermore, Section 228A was introduced in the IPC which makes it punishable to disclose the identity of the victim of certain offenses including rape.

In the aftermath of the Nirbhaya Rape Case, The Criminal Law (Amendment) Act 2013 was enacted. It expanded the scope of rape by including offenses like the use of criminal force on a woman with intent to disrobe, voyeurism, stalking, use of unwelcome physical contact, words or gestures, demands, or requests for sexual favors, showing pornography against the will of a woman, or making sexual remarks. Along with the extension of the scope of rape, the punishments were also increased significantly through this amendment. The act increased jail terms in most sexual assault cases and also provided for the death penalty in rape cases that cause the death of the victim or leaves her in a vegetative state. The punishment of gang rape was increased to 20 years to life imprisonment from 10 years to life imprisonment. The punishment of stalking was set at imprisonment for 3 years and punishment for the acid attack was set at 10 years of imprisonment. The amendments were not confined to the Indian Penal Code as the 172^nd Law Commission report led to amendments in the Indian Evidence (Amendment) Act of 2002 which further strengthened the position of women in rape cases. The new provision barred putting questions in the cross-examination of the victim as to her general ‘immoral character’ in rape or attempt to rape cases. However, the effect of these legislations has been negligible in terms of statistics as according to the National Crime Record Bureau, a woman is raped every 16 minutes and 88 rape cases are recorded daily. In 2019 alone, 32,033 rape cases were recorded. Therefore, these legislations have not deterred the occurrence of rape cases in India.

Fast Track Courts: A Reality Check

Fast Courts have been a part of the Indian legal system since 2000 which gained significance after the Nirbhaya Rape Case in 2012. The main objective of these courts was to deal with the crime against women, child trafficking under POCSO Act, crime against senior citizens, crime against the disabled, and other heinous crimes. As quoted by the 11^th Finance Commission of 2000, the fast-track courts are recommended: “to substantially bring down, if not eliminate, pendency in the district and subordinate courts over the next five years”.

However, various statistics indicate an entirely contrasting situation. According to the NCRB data, trials in fast-track courts take longer than trials in regular courts. It is reported that out of more than 28,000 trials completed in India’s fast-track courts in 2018, only 22% took less than a year to complete. This is the lowest percentage among all kinds of courts including SC/ ST courts, Additional Session Judge Courts, District/ Session Judge Courts, POCSO Court, Sub-Judge Courts, Special Courts, and Special Judicial Magistrates. Furthermore, around 42% of the total trials took more than 3 years to complete, while 17% took more than five years to complete. These statistics indicate that the fast-track courts have failed in achieving the very objective for which they were established.

It is essential to note that the mere establishment of fast-track courts is not sufficient in countering the inadvertent delays in the trial of the rape cases. Various inefficiencies have infested the working and establishment of the fast-track courts. Fast-track courts have been established under the centrally sponsored scheme of allocation of funds which is overseen by the Department of Justice. The scheme was established in 1993 stating that 60% of the funds must come from the center and 40% of the funds must come from the states. In 2020-21, Rs. 767 crores were approved for the construction of 1,023 fast-track courts under The POCSO act, 2012 based on the centrally sponsored scheme. The particular scheme leads to disparity in fund distribution among states which was evident when the Maharashtra Government sanctioned the construction of 138 courts with the expected cost of Rs. 100 crores. This extracts Rs. 60 crores as the share from the center leaving only on an average, a sum of Rs. 26 crores for the other states.

Various veterans in the field of criminal law have pointed out various flaws in the mechanism of fast-track courts indicating that they are similar to the regular courts, if not worse. It is stated that the nomenclature of ‘fast-track’ courts exists just in the name and not in the functioning of the courts as the judges and the procedure are identical in nature. Various procedural inefficiencies have been pointed out like the witnesses not coming on time, lawyers not turning up and while the judges don’t have the power to discipline them, the bar councils don’t take any action against them. Recording of evidence is a major stage in a trial that concerns grave violations and plays a significant role in the delay in the delivery of judgment. The longer duration of trials in special fast-tracked courts has been justified by the serious and complicated nature of the cases they deal with as they require recording of more evidence than regular cases.

Effective legal assistance is an important factor missing from the remedies provided to sexual assault victims. The Ministry of Health and Family Welfare issued guidelines for medico-legal care for survivors of sexual violence intending to standardize healthcare professionals’ examination and treatment of sexual assault survivors. The guidelines provide scientific medical information and processes that aid in correcting pervasive myths. However, under the federal structure of India, health is a state subject and therefore, the states are not bound to follow the said guidelines. The Hon’ble Supreme Court in a 1994 case ruled that police should provide sexual assault victims legal assistance and keep a list of legal aid options which do often not conform to.

Moreover, victimization of the aggrieved is still prevalent at great lengths in the Indian Legal system and the social fabric of the country. The delay in judgment delivery often leads to the promotion of speculations which encourage issues like victim-blaming, dilution of passion towards a goal, increased mental agony for the victim and their family. Therefore, it is the need of the hour to recognize these flaws and implement corrective measures to ensure speedy trials in rape cases.

Conclusion

Despite the progressive development in legislations and specialized fast-track courts, the main objective, which is a speedy trial, remains unachieved to this day. Various state and center initiatives have fallen through mainly because of the lack of monitoring mechanisms and frameworks. In view of this article, in order to ensure the implementation of speedy trials in rape cases can be a reality only if an efficient mechanism that involves suitable procedural laws and specialized judges, is implemented.

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