Saturday, November 17, 2012

Need on capital punishment in the context of rape

Need on capital punishment in the context of rape

1. Tukarram v. State of Maharashtra, In this case a young girl Mathura, she was working in the defendant’s house. They decided to marry. The brother of Mathura lodged a complaint with the police that Nushi (landlord) and her brother kidnapped Mathura. The police constable Babu Rao called both the parties to the police station and obtained statements of Ashok and Mathura. It was about 10.30 p.m. and Tukaram and Ganpat, two constables, were present in the police station. While the parties were leaving the police station Tukaram told Mathura to wait and asked the rest to leave. Where he had a sexual intercourse with Mathura. Since, Tukaram was drunk, he could not do the act but went away after doing indecent gestures.

The Session Court pronounced that there was a sexual intercourse but this was not rape. Mathura, the court said, submitted to the police voluntarily and she had lied there after that she was raped. The High Court and Supreme Court also presume Mathura’s consent so they acquitted the constables.

2. In Bhai Singh v. State of Rajasthan, for raping a Harijan girl of 7 by a boy of 18, the court sentenced him for 5 years imprisonment only. It decision given on the ground of that the boy was only 18years of age.

3. Bijoy Kumar Mohapatra v. State of Orissa, in this case a girl studying in S.K.D.A. Women’s College, Rourkela was gang raped by 4 men. The HC of Orissa held that since the age of the girl was between 18 and 20, the question whether she had consented did not arise. “Consent must be voluntarily .A mere inevitable compulsion, queiscnece,non-resistence or passive giving in when volitional faculty is either crowded by fear or vitiated by duress, cannot be deemed to be consent. Consent on the part of a woman as a defence to all allegation of rape, requires voluntary participation after having fully exercised the choice between the resistance and assent”.

4. Sidheswaar Ganguly v. State of West Bengal, In this case it was held that the consent of the victim is immaterial when she happens to be less than sixteen years of age on date of the occurrence, i.e., 20 April 1954, when the accused was alleged to have had sexual intercourse with the girl. Though the ossification test (X-ray examination) is not a sure guide to determine age, in the absence of birth certificate the conclusion as to the age could be drawn from the fact and circumstance including physique of the person and examination.
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