The procedure of law in rape cases
Being the fourth most common crime against women in India, rape is a type of In spite of sexual assault where the perpetrator forces sexual contact on the victim against her will and without her consent. We get a better understanding of what ‘rape’ implies as per its definition in the Indian Penal Code, 1860. It is important to acknowledge that by a PIL initiated by an NGO, the Supreme Court has widened the scope of Section 375 in the IPC. By the 172nd report of the Law Commission, it has been recommended to make rape a gender-neutral crime. After the Criminal Law (Amendment) Act in 2013 was enforced, laws have become stricter regarding rape and site sexual harassment. In spite of such reformations, in 2019 as per the report of the National Crime Records Bureau, India witnessed 32,033 registered rape cases or an average of 88 cases on a daily basis.
There is a barrier between crimes like rape being committed and the very crimes being reported due to lack of trust instilled in our policemen and low conviction rates which must be tackled diligently by well-planned laws. Instead of supporting rape victims to get justice, we shun them from society and demoralise them. What we need is a well-organised system to be followed for the victim to report such crimes backed by a willing police force to get things in order. Hence, it is imperative that one is always aware of the procedure prescribed by law for reporting such crimes.
I. The What, When, Who and Where of an FIR :
What? - An FIR is the First Information Report which is prepared by the Police based on the information communicated to them which can either be oral or in written form by any person who possesses information regarding such a cognizable offence like rape. The aim of registering an FIR is to record the information(about the crime) at the earliest which would be conducive in having a prompt start to the investigation before the accused absconds or gets the chance to tamper with any relevant evidence.
When? - It is advisable to file an FIR within 24 hours of the crime in order to accelerate the
process of investigation and gather evidence. However, a delay in filing a rape case is excused because it is believed that family honour is involved. Nevertheless, the earlier it is registered the easier it gets to prove the same.
Who? - In cases of rape, when the question arises as to who can file an FIR, not only can the
victim of the crime but also a witness to the offence or any person who has information about the crime can file an FIR. More importantly, a copy of the FIR must be given to the survivor and her family for free.
Where? - The victim must approach the nearest police station to register an FIR. The statement of the victim shall be recorded by a lady officer, in the absence of which a lady constable would be called to take the statement. However, if the said police station is outside the jurisdiction of the crime then the FIR will be called a zero number FIR which will be transferred to the police station in charge of the investigation.
Can the Police refuse to register an FIR?
No, the refusal of filing an FIR has become a cognizable offence ( an offence serious in nature) and a bailable offence. Therefore, any police officer refusing to register an FIR shall be punished with a minimum term of imprisonment of six months which may extend to two years as per Section 166A(c), IPC.
II. Medical Examination :
The victim is advised to go for a medical check-up immediately after the incident. The victim must refrain from having a shower or changing any of her clothes or even a sanitary napkin ( if wearing at the moment). This medical examination is a part of the official police investigation. The treatment of the survivor and the documentation of any signs indicating rape are imperative components of this examination. It must be acknowledged that the victim is provided with medical help as well as psychiatric support, thus understanding that this procedure requires a great part of being sensitive towards the victim.
Whose obligation it is to get the medical examination conducted?
The POLICE have a duty. A doctor would proceed with the examination only after the request of the police. After rape medical examinations are called as“medicolegal emergency.”The most crucial shreds of evidence are found at this stage. Hence, it is the right of the victim as well as the duty of the hospital, to examine him/her immediately even before filing a complaint.
Basic protocol before commencing with the medical examination :
The medical test shall commence with the consent of the victim or of a competent person
on her behalf(like family, friends, police).
● The medical examiner shall record the name, age, address and sex of the victim along
with the relationship of the person who brought the victim and the consent of the victim.
● Before taking consent, the victim will be informed of the nature of the medical
examination. In life-threatening cases, the doctor may proceed with the examination
without the consent.
Evidence to be collected from the medical examination of the victim :
The clothes of the woman, swabs from vagina and anal opening, two-fingeretc., pubic hair samples, foreign substance, nail scrapings along with a report in an envelope to be submitted to the judicial magistrate or the police. In cases where the victim is under severe trauma, a lady officer will visit the victim at her residence or hospital in order to record her statement. Once the medical test is done, the test reports are sent to the courts by police officials.
What must the reports contain?
1. exact time of commencement and completion of the examination
2. Extra genital injury
3. Genital injury
4. Description of the materials taken for DNA profiling
5. Mental condition.
6. Reasons for reaching to the mentioned conclusion.
7. Urine test report
8. Blood test report
What is the two-finger test? Is it legal?
Two-finger test is a method to determine whether the hymen of a female is intact or is broken by inserting two fingers into the vagina(testing virginity). It is believed that hymen ruptures only if she undergoes sexual intercourse, which is a complete myth. Speaking of law, no doctor can perform the two-finger test as it is unscientific and violates a female’s privacy and dignity.
*The accused is also medically examined to which he cannot deny or oppose.
III. Statement recorded under Section 164, CrPc :
Who is duty-bound to record the statement of the victim?
It is the duty of the Magistrate(Judicial/Metropolitian) to record the statement of the survivor as soon as the case is brought to the notice of the police and if not in senses, as soon as she is able to speak. No police are present while recording the statement. Such a statement is of immense importance. The purpose of recording the victim’s statement by a Magistrate is to minimise the chance of the victim changing her version at the time of trial due to the fear of making false statements.
If not hospitalized, the magistrate shall go to the victim’s home or any place of her choice.
For temporarily/ permanently mentally or physically disabled victims :
In such cases, the Magistrate will take the assistance of a special educator to record the victim’s statement, further provided that such statements made by such a person shall be video graphed. When the victim is a minor, the mother of the victim can be allowed to be present at the time of recording her statement under section 164.
After the FIR is registered, the police initiate the investigation at once. The evidence found as a result of such investigation would lead to the arrest of the accused and filing of the charge sheet before the appropriate court.
IV. Filing of the charge sheet :
Once the charges have been pressed, what next?
A detailed account of the investigation including the evidence gathered, and the statements given by the victim, witnesses and the accused are submitted by the police to the Sessions Court(known as the police report). Hence, once the charge sheet is submitted to the court, the trial can begin.
Only a sessions court has the power/jurisdiction to try a rape case. The State Prosecution takes the case on behalf of the victim through the victim has her own rights of getting a lawyer to assist the state prosecutor. A rape case is always held in-camera[no unrelated people allowed] and is not open for the public eye. During the trial, arguments are put forward by the public prosecutor and the lawyer of the accused and the survivor, witnesses and accused give their testimony.
These cases can end in the conviction of imprisonment up to seven years and even be sentenced to death in the rarest of rare cases. Acquittal of an accused does not always imply that the allegations were false but it could be due to other factors like improper investigation, prosecution unable to prove the case beyond reasonable doubt and pressure on the victim due to society, politics, religion, financial background, etc. to withdraw the case.
However, it is open to either of the parties to make an appeal against the judgement of the
sessions court to the High Court and then further to the Supreme Court. The decision of
the Supreme Court is however final. In case of an appeal, the punishment can be increased or decreased.
It is an exhausting process for the victim and her family to fight for justice. There is a dearth of institutional support which defeats the purpose of the letter of the law. Despite the effort by the legal enforcement to protect the rights of rape victims, it falls short when there is not a collective social responsibility towards women’s safety. The foundation of our society is both men and women equally enjoying the liberty to feel safe beyond the four walls of their homes. India has to dig deep to the root cause and understand the reasons for such criminal activity, implying sanctions which not only curb such crimes but makes an offender think twice before committing such perpetration. While the legal machinery of our country has the power to implement this, we as citizens must know our duties and our rights to fight where needed and take the next step. To put in a millennial tone, staying informed is the new cool. And when one has the access to such information, it becomes one’s responsibility to make others aware of the same.