The Telegraph
Since 1st March, 1999
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Rape violates right to life: Apex court

New Delhi, Dec. 27: The Supreme Court has equated rape to an offence violating the most basic of all fundamental rights — the “right to life” — guaranteed by the Constitution.

“It (rape) is a crime against basic human rights and is also violative of the victim’s most cherished of the fundamental rights, namely, the right to life contained in Article 21 of the Constitution of India,” a division bench of Justices Doraiswamy Raju and Arijit Passayat ruled on December 17.

The judgment thus quashed a Punjab and Haryana High Court order acquitting a rape accused on the grounds that the complaint was filed 17-18 days after the incident and that the victim had “habitual sexual intercourse”. The 14-year-old domestic help was raped by her employer at his house in his wife’s absence.

The prosecution had proved the offence in a trial court. But, on an appeal, the high court agreed with the defence that the complaint was an afterthought as the victim’s mother had refused to return the advance money paid, over which a suit for recovery had been instituted. The court had held that the delay in complaining was not properly explained and no external injury mark was visible on the victim. It also took into account the medical evidence that the girl used to have “habitual sexual intercourse”.

The apex court today said: “The courts have to display a greater sense of responsibility and be more sensitive while dealing with charges of sexual assault on women, particularly of tender age and children.”

“A socially sensitised judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisions,” the bench added.

“In a tradition-bound and conservative society, more particularly in a rural area, the shame of sexual assault on a girl of about 14 years cannot be lost sight of,” said Justice Passayat, writing the order for the bench.

Striking down the high court’s observations, the bench said the delay in complaining was explained by the serious illness of the victim’s father. The girl and her mother wanted to spare him any worry and waited for him to recover before filing the complaint, it added.

The absence of injury marks, the bench said, was of no consequence as the doctor had examined the victim about three weeks after the incident. “That being so, the effect of the act on the physical form was practically obliterated. That is not denied by the doctor,” the judges said.

Signs of “previous sexual intercourse” found on a victim during a medical test “cannot, by any stretch of imagination, be a ground to acquit an alleged rapist”, the bench said. “The question which was required to be adjudicated was did the accused commit rape on the victim on the occasion complained of.”

“Even if the victim in a given case has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone,” the judges observed in another significant aspect of today’s judgment.

“Even if it is hypothetically accepted that the victim had lost her virginity earlier, it did not and cannot in law give licence to any person to rape her. It is the accused who was on trial and not the victim,” the judges said.

The court had earlier ruled that even a legally wedded wife could not be compelled to have sex; having sex with her without her consent would amount to rape. Another of its judgments had said that even sex with a prostitute without her consent would amount to rape.

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