In Conversation with Ms. Kanchi Kohli – Environment Impact Assessment, Public Consent and Dismal Condition of Mining SectorNovember 23, 2018
GENDER NEUTRAL LAWS – NEED OF THE HOURNovember 29, 2018
It is rightly said that the world suffers not because of the violence of bad people but because of the silence of good people. Historically in India, women have been placed at a high position and revered like a deity. However, with tremendous change in the society, the social status of women has gradually diminished. They are victim to large number of offences like rapes, sexual assault, dowry deaths, etc. Every now and then, we hear news of offences against women. It has become a common phenomenon in India. Despite having strict laws against rape and sexual assault in India, crime against women has seen a constant upward trajectory. The primary reason for increase in crime rates lies in the fact that, in most of the cases, the victims of the rape cases do not want to come out of veil and combat against the perpetrator of such crimes. In most of the cases, the victims don’t even file a complaint against the accused and even if they do so, they turn hostile during the trial. Eventually, this leads to the acquittal of the accused. The Court just acts as a hapless spectator of the entire mockery that takes place during the trial in the Court room. The cardinal principle of giving the benefit of doubt to the accused should not be exaggerated to such an extent that, it defeats the very purpose of criminal law. Only reasonable doubt shall be awarded to accused. This observation was also made by the Supreme Court in the case of Shivaji Sahebrao Bobade & Anr vs State Of Maharashtra.
The Supreme Court, in the case of Hemudan Nanbha Gadhvi vs. State of Gujarat (hereinafter ‘Hemudan Nanbha’), has denied from being a mere spectator and allow mockery of justice in the court room. The Court also showed its concern over the increasing rates of rape cases in India. The Court opined that witness turning hostile during the trials cause a great impediment in the disposal of justice which in turn causes travesty of justice system. The Supreme Court of India, while considering the issues of increasing rate of rape cases, held that a rape accused would not be acquitted merely because the rape victim turned hostile.
The Court clearly stated that the victim can also be prosecuted for turning hostile in order to protect the accused. Judiciary cannot be a mere spectator and acquit the accused despite having convincing evidence against him. The Court stated that acquitting the accused merely on the ground that the victim turned hostile would make travesty of judiciary system. The Supreme Court showed zero tolerance in the case of Hemudan Nanbha, by punishing the accused despite the fact that the rape victim turned hostile and failed to identify the accused during the trial. The Court was of the opinion that even if witness turned hostile, there were other reliable evidences against the accused to convict him under the law. This judgment will certainly have a deterrence effect for future rape cases.
To understand the whole issue, a little background is necessary. The accused, Hemudan Nanbha Gadhvi, was tried for sexually assaulting a 9 year old girl. The victim identified the accused during the Test Identification Parade. However, she turned hostile during the trial. At the Trial Court, the accused was acquitted because the victim turned hostile. In the High Court, the Court reversed the decision of Trial Court and held him guilty for sexual assault. When the matter was appealed before the Supreme Court, they said that there were enough convincing evidences against the accused to convict him. The decision is a big blow to all such perpetrators of crime who try to escape the clutches of judiciary by influencing the witnesses. For reasons mentioned below, the author believes that the Hon’ble Court’s decision is correct and should be lauded.
First, the Supreme Court looked into the socio-economic background of the victim’s family and went behind the curtain to find the truth. The Court said the victim belonged to a poor family and has four siblings. Victim’s deposition was recorded quite a long time ago and a sufficient time have passed, which would have given the accused, a sufficient opportunity to influence the victim through coercion or intimidation or persuasion. This judgment took the ground beneath the feet of the offenders. The judgment has to be lauded for its effort to look into background of the case to decide the case and not become a mere spectator of injustice.
Second, the Court also stated that even when the rape victim turns hostile, other evidences does not get effaced. They still have evidentiary value and can be relied upon. It was opined that medical examinations and statements of other witness are not effaced by the fact that victim turned hostile. The Court convicted the accused on the basis of medical reports of the victim and other convincing evidences.
Third, the Court made it absolutely clear that neither the victim nor the accused will be allowed to sabotage the purpose of the criminal trial. The Court discouraged the victim from turning hostile and said that even the rape victim can be prosecuted for protecting the accused. Dispensation of justice is matter of serious concern in criminal cases. Turning hostile of the prime witness cannot become the sole ground for acquittal. Witness turning hostile, not only let the guilty go scot free but also promotes such offences in future. It indirectly encourages the criminals of such crimes and encourages the perpetration of crimes.
The author welcomes this judgment of Supreme Court as it set a new precedent to break the vicious circle of abuse of criminal law in rape cases. Earlier, the rape accused used to get scot free by turning the victim hostile through coercion or undue influence. However, after this judgment which set a strict precedent, the rape accused would not have an easy recourse. This would create an apprehension and fear in the minds of such offenders, which is likely to reduce the crime rates against women in India.
ABOUT THE AUTHOR:
Suvam Kumar is a II year student of B.A. LL.B at National Law University, Jodhpur. He has keen interest in Constitutional Law and Criminal Law.