Unnao: The legal provisions involved

Reading time: 6-8 minutes.

Rape is a brutal, heinous and odious crime which is often used by the offenders to establish their dominance, satisfy their ego and lust. It is a disgrace on this society to see offenders committing the act of rape and going unnoticed, especially and specifically, if such offender is a person with power.

However, in the present case, the Additional District Judge Dharmesh Sharma, Tis Hazari Court convicted the Uttar Pradesh MLA, Kuldeep Singh Sengar, in the infamous Unnao rape case.

Background in brief:

The victim in the present case stated that she had been raped on 8^th June, 2017 at the residence of the accused-convict, Kuldeep Singh Sengar who was a member of the Bhartiya Janata Party (BJP) then and a Member of Legislative Assembly (MLA) of Uttar Pradesh from Unnao constituency.

The victim stated that she had gone to the accused-convict’s house to seek employment where she was raped. When no action was taken, the victim had stated the same in a letter to the Chief Minister of Uttar Pradesh on 17th August, 2017.

Much to her disappointment, neither any action was taken nor was her complaint acknowledged, which led to the victim trying to immolate herself in front of the CM’s residence. This lead to public attention which turned into an outrage in no time. In the meantime, the father of the victim was falsely accused and put in judicial custody.

He died of injuries from the assault by supporters of the accused-convict. It was only when the victim’s father died and she tried to immolate herself, the FIR was registered against the accused-convict, Sengar.

Furthermore, on July 28, the victim’s car was hit by a truck, the victim and her lawyer suffered injuries while her two aunts died and the family suspected foul play. As a result, the Supreme Court of India transferred all 5 cases related to the Unnao Case from a Lucknow Court to the Tis Hazari Court in Delhi.

Current development:

On 16th December 2019, the Tis Hazari Court, Delhi convicted Kuldeep Singh Sengar of rape under Section 375 of the Indian Penal Code, 1860 (herein referred to as ‘IPC’) and Section 5(c) of the Prevention of Children from Sexual Offences Act, 2012 (herein referred to as ‘POCSO Act’).

“The testimony of the survivor (PW-10) has been unblemished, truthful and has been proved to be of ‘sterling quality’ to arrive at a conclusion that she was sexually assaulted by Kuldeep Singh Sengar at his evidence at Village Makhi on 04.06.2017”, the judge observed.

The case was heard on a day-to-day basis. The Court had also framed other charges against the convict and other accused in the other four cases, which are, (i) framing of victim’s father in illegal firearms’ case, (ii) victim’s father’s death in judicial custody, (iii) conspiracy of the convict and other accused in the accident of July 28, lastly (iv) a separate gang rape case of the victim.

The charges:

The relevant sections that form the present case are Section 375 of IPC which deals with the offence of rape and Section 376 of IPC which deals with the punishment of rape. In addition to this, Section 5 and 6 of POCSO Act have proved to be relevant as the victim was a minor when the horrendous act was committed. Section 5 relates to the ‘Aggravated Penetrative Sexual Assault’ while Section 6 states the punishment for the same.

The court, in the present case, observed that the investigation had not taken place according to the provisions of POCSO Act, where it is clearly mandated by the relevant Section 24 that an investigation must be conducted by a woman officer.

Furthermore, the Court severely criticised the Central Bureau of Investigation (CBI) for taking over a year to file the charge sheet. Additionally, the Court further slammed the CBI for ‘leaking’ information and non-examination of data from the convict’s mobile phone.

The Court also observed that a delay of over 2 months in reporting of the said crime was satisfactorily explained by the complainant as she was threatened and menaced by the convict and his supporters.

The Court further observed, “this investigation has suffered from patriarchal approach or inherent outlook to brush the issues of sexual violence against children under the carpet apart from exhibiting lack of sensitivity and humane approach”.

The judge stated in the end that “there is nothing wrong with letter and spirit of POCSO Act”.

Quantum of punishment:

On 20th December 2019, the Delhi Court sentenced the convict, Kuldeep Singh Sengar, to undergo imprisonment for life for the remainder of his natural biological time and pay a fine of rupees 25,00,000/- (Rupees Twenty Five Lakh only) under section 376(2) of IPC.

Out of such amount, rupees 10,00,000 (10 Lakh) shall be paid to the victim as compensation and the remaining 15,00,000 (15 Lakh) to the prosecution as costs. In any case, if the fine is not paid within a period of one month, the same shall be recovered as land revenue arrears by the State of Uttar Pradesh as stated under Section 421 of Code of Criminal Procedure, 1974 (CrPC).

In addition to this, the CBI has been directed to give the victim and her family the necessary protection required.

During the hearing on quantum of punishment, the prosecution asked for maximum punishment while the convict based his arguments on the fact that he has a daughter of marriageable age and that he has worked for the welfare of the society and public being a four-time MLA.

Considering the contentions and arguments, the Court rightly observed the facts and evidences and awarded a just punishment.

Conclusion:

The present case is one where the power of the accused-convict put many hurdles to seek justice, however, the ends were met after a series of mistakes and events. It can be concluded that we still live in a society that is burdened by the power of the politicians and wealthy where the poor and the minorities in our society are scared, threatened and menaced.

When one raises their voice against such a powerful section of the society, they are met with obstacles to ruin their morale and will to perform a good deed. The stigma of patriarchy and misogyny is prevalent in the society that lead to such ferocious crimes against women and they often go unnoticed.

Therefore, the case at hand was a perfect start to deal with such stigmas and make the power-holders realize that nobody is above the law.

Author: Dakshi Khatri from Symbiosis Law School, Pune.

Editor: Farsana Sadiq from Faculty of Law, Jamia Millia Islamia.

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Unnao Case: Analysis

Reading time: 5-6 minutes.

“I don’t want to die. Those who did this to me, I want to see them hanged.” are the heart-breaking last words of the 23rd year old rape victim who was attacked and burned alive on Thursday, the 5th of December. The victim was later airlifted to a Delhi Hospital for intensive treatment but succumbed to her injuries and passed away on Friday night after suffering from a cardiac arrest.

Background

The events leading to the attack began over a year ago. From statements recorded with the magistrate it is known that the young woman located in Unnao had filed an application seeking initiation of criminal proceedings on the grounds of rape by two individuals by the name(s) of Shivam and Shubham Trivedi and stated that the former, who is the prime accused,  had made claims that he would marry her but then abducted and raped her, made recordings of the attack and then further continued to abuse and humiliate her by threat of making the videos public. When the young woman brought up the claims of marriage made by Trivedi, he prepared a marriage contract that was never registered and thereafter kept her hostage in an enclosed room in Rae Bareili for a month’s time, raping her countless times during this period and threatened her with death if she were to leave. He then left her in her native village and stated he would never marry her and threatened the lives of her and her family.

On the date of the 12th December of the same year, the victim was residing quietly in the home of her aunt when the accused returned and under false pretexts of taking her to the temple. He and the other accused both raped her at gunpoint and abandoned her in a field. The victim then filed a complaint with the police but no action was taken. She then submitted a written complaint to the superintendent but her complaints continued to fall upon deaf ears. It was only when she filed an application with the district court that, under the court’s direction, a first information report was registered.

It was only ten days prior to the victim’s death that Shubham Trivedi had been released on bail by the Allahabad High Court. Trivedi then immediately began harassing the victim and her family, threatening violence and death if she refused to withdraw her complaints. Claims vary hereafter with police purporting that the victim did not come forward with any requests for protection and the family which states that their pleas for help went unheard, as the accused has political connections. The victim’s dying declaration includes details of the attack in December and included the two previous accused accompanied by three other men, who seized the victim at a railway station while she was on her way to a hearing concerning the case and then dragged her to a field outside of the village, beat and poured kerosene on her and set her ablaze.

Death by Burning: Cruellest Form of Murder?

There is no denying the utter cruelty and beastly nature of the events that have occurred. Eyewitnesses state that the victim ran a kilometre’s length and managed to call and speak to the police herself. This is especially disturbing considering the severity of her injuries; 90% of the victim’s body was impacted by burns. It implies that despite the extremity of her injuries she was fully cognisant and mentally aware in spite of physical trauma and would further suffer in such a manner for a slow 40 hours until she passed away. Death by burning has largely been an extrajudicial measure, utilised by mobs and has been condemned by a plethora of modern courts as a cruel and disturbing manner of death.

Doctrine of Rarest of Rare

The course of action called for by the public in such situations is most often a request for an issuance of the death penalty. But the fact remains that an overwhelming majority of countries have abolished the death penalty, either in law or de facto. However, Indian law does not hold a strict view towards the death penalty either way. It is subjected to the doctrine termed as ‘rarest of rare’ that permit the allowance of the penalty under conviction of some statutes.

The case of Macchi Singh v. State of Punjab laid down various tests for a rarest of rare case by assessing the brutality and social impact of the crime committed— taking into account factors such as intention and motive. The effect of the crime as well as the personality of the victim, considerations such as their age, status, etc. are relevant. After noting these particular considerations, the court must then ponder if the crime is of such an unusual nature that it necessitates a sentence of death and there is no alternative even after giving adequate weight and thought to the circumstances of the offender, such as in Rajeet Kumar Singh v. State of Bihar, which had the effect of being of such a grotesque nature that it caused extreme indignation of the community.

However some criticism has surrounded the “rarest of rare” doctrine; it has been noted that the tests used for application are of a general nature and lack uniformity in application. Rather, they are dependent on the judges’ own individual understanding and application. There is a need to create a standardised understanding of the “rarest of rare” doctrine if it is to be effectively implemented, otherwise it then presents the problem of being issued only in haste and in response to public outcry rather than when the nature of the crime has so necessitated it. The judiciary’s function then might possibly become defunct.

Relevancy to the Case at Hand

Currently, the five accused named by the victim are being held in judicial custody, out of which the two previously accused had been charged for the offence of gang rape under Section 376D of the Indian Penal Code. Trivedi will possibly also be charged for violating the agreed upon conditions of his bail, which stated that he would comply with the expeditious disposal of the case and would not tamper with evidence. All five men are likely to be additionally charged under attempt to murder under Section 307. After the passing away of the victim, there has been extreme outcry from the public for the deaths of the five accused. The court will now have to question whether or not the case satisfies the qualification of a rarest of rare case, or if a sentence of life imprisonment is more suitable to the nature of the crime.

 It is equally likely that the decision can go either way considering the vague nature of the “rarest of rare” doctrine and its application. There have been a number of examples of cases that have presented similar factual scenarios but courts have been reluctant to issue the death penalty. However, the extreme social outcry that has occurred out of this case is a big indication that the death penalty is very plausible when observing the real disturbances and ripples it has caused amongst the sentiments of the people. Currently, the best course of action for the state is to speedily and accurately evaluate the case and produce a balanced judgement and thereafter avoid delay in carrying out its pronouncement.

Author: Ruthika Reddy from NALSAR, Hyderabad.

Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.