Madras High Court
Andrews vs The State on 15 December, 2017
Author: N.Kirubakaran
Bench: N.Kirubakaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 15.12.2017
CORAM
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
Crl.O.P.(MD).No.880 of 2017
1.Andrews
2.Prabhu ... Petitioners/
A.2 & A.3
Vs.
1.The State,
represented by
The Inspector of Police,
Koodankulam Police Station,
Tirunelveli District.
(Crime No.204 of 2016). ... 1st Respondent/
Complainant
2.The Union of India,
represented by
its Secretary,
Ministry of Home Affairs,
New Delhi.
3.The Union of India,
represented by
its Secretary,
Ministry of Women Welfare and Child Development,
New Delhi.
4.The National Commission for Women,
New Delhi.
5.The State of Tamil Nadu,
represented by
its Secretary,
Home Department,
St. George Fort,
Chennai - 5.
6.The Director General of Police,
Mylapore,
Chennai. ... Respondents 2 to 6/
Newly Impleaded Respondents
(Respondents 2 to 6 are suo motu impleaded as party respondents vide order of
this Court dated 15.12.2017 passed in Crl.O.P.(MD).No.880 of 2017)
PRAYER:
Petition filed under Section 439 of the Code of Criminal Procedure, to
enlarge the petitioner/sole accused on bail in Cr.No.204 of 2016 pending on
the file of the respondent.
!For Petitioner : Mr.R.Rajesh Kumar
^For Respondents : Mr.T.Saravanan,
Senior Central Govt Standing counsel,
for R.2 to R.4
Mr.Pugalenthi,
Additional Advocate General,
for R.5 & R.6
:ORDER
Hey Bharatha Matha!! look how your daughters are being molested, sexually assaulted and murdered by some of the devilish creatures roaming in your land. The said culprits could neither be termed as ''human beings'' nor as ''animals'', as even animals are noble in their own way.
An unimaginable horror which would have terribly shocked and shamed every Indian is rape of a 100 year old lady who died later by a drunken man in a village in Meerut, Uttarpradesh in October 2017.
Another cruel incident which is no less shocking and shaming is the rape of a 10 year old girl who delivered a baby girl in August 2017 in Government Medical College and Hospital, Chandigarh.
Equally grave and gruesome incident is the rape of a 18 month old toddler by a 33 year old man in front of his children at his home, when the child came to play with his children in November 2017.
A 30 year old lady was gang raped in broad day light by four men in front of her husband and children in Muzzafar Nagar, Uttar Pradesh in the first week of October 2017.
A 15 year old minor was gang raped and set on fire in Sagar City, Madhya Pradesh in the first week of December 2017.
2.The above rapes and gang rapes reported in the media are only to show that the horrific and gruesome crimes are occurring unabated putting a question mark over the safety of women in India, in spite of many stringent laws. It is shocking and disheartening to learn that even toddlers are raped. In February 2017, a seven year old girl was raped and murdered in Mugalivakkam, Chennai by a youth.
3.It is a shame that a 60 years old mentally retarded lady, was stated to be gang-raped and murdered by the petitioners/A.2 and A.3 including two juveniles in this case. This case only reflects as to how the women in Indian society are continued to be harassed in spite of many stringent laws.
4.The petitioners were arrested and remanded to judicial custody for the alleged offence punishable under Section 302 IPC altered to Sections 379, 376 and 302 IPC. The petitioners were charged under the above provisions for allegedly gang raping a 60 year old mentally retarded lady on 10.11.2016 along with two other juveniles and stoning her to death. Taking into consideration the brutal and heinous crime of gang rape and murder of a mentally retarded lady, this Court by an earlier order rejected the relief of bail sought for by the petitioners. However, this Court had kept this petition pending for getting response from the proposed parties for the queries raised by this Court in the interest of the society.
5.Sexual assault is violation of privacy, dignity, honour causing permanent scar and continuous agony in the mind of the hapless victim. Everyone has right over her/his body and no one has right to infringe upon the same, without the consent of the person. In sexual assault, the victim's body inspite of her resistance/opposition, is vitiated by the perpetration by force, intimidation etc., The Hon'ble Apex Court in State v. Gurmit reported in 1996 (2) SCC 384 held in paragraph 21 as follows:
?21. Of late crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspirers confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.?
Similarly, in Dinesh v. State reported in 2006 (3) SCC 771 held that sexual violence apart from being dehumanising act is an unlawful intrusion on the right of privacy and sanctity of a female violating victims basic human right.
6.A physiotherapy college student ?NIRBHAYA? was gang raped on 16th December 2012 in a moving bus in New Delhi and she later succumbed to the injuries. Her sacrifice compelled the Central Government to appoint Justice Verma Committee whose recommendations led to the Criminal law (amendment) Act, 2013 amending IPC by introducing new Sections 376-A, 376-B, 376-C and 376-D and adding Section 354-A, 354-B, 354-C, 354-D of IPC, Indian Evidence Act and Criminal Procedure Code. In spite of above stringent laws, sexual assaults on women continues unabated. The offences have to be analysed and examined on psychological, sociological angles also in an effort to prevent and bring down the offences in the patriarchal society. Gender sensitisation has to start from family level for gender equality.
7.Indian society is a conservative one and the country has leaped forward economically and sociologically in this electronic era. However, sadly, sexual violence against Women and Children are increasing day by day alarmingly. The following details given by NCRB would prove the increase in offences:-
CRIMES AGAINST WOMEN Year No. of Crimes No. of Rapes 2005 1,55,553 18,359 2006 1,64,765 19,348 2007 1,85,312 20,737 2008 1,95,856 21,467 2009 2,03,804 21,397 2010 2,13,585 22,172 2011 2,28,650 24,206 2012 2,44,270 24,923 2013 3,09,546 33,707 2014 3,37,922 36,735 2015 3,27,394 34,651 2016 3,38,954 39,068
8.As crimes against women and girl children are shockingly rising every year, especially, sex crimes, most urgent measures have to be taken. Hence, the following queries are raised in the background of the above case:
1.What are all the reasons for increase of sex crimes against women and girl children in India?
2.What are all the problems faced by the police authorities while dealing with the complaints involving sexual violence against women and girl children and prosecuting the case properly?
3.What is the rate of conviction in rape cases throughout the country and Tamil Nadu for the past 10 years? [Year-wise details have to be given separately.]
4.What are all the steps taken including making use of latest technology like DNA finger printing taken to effectively investigate and prosecute the culprits to get conviction to prove ?certainty of punishment? in cases of offences against women and girl children?
5.Why not the Central and State Governments install CCTV cameras in public places, junctions, malls etc., to have surveillance to prevent offences being committed especially against women and to detect the offenders in case of commission of offences and to prove the guilt of the accused to the hilt as the brutality of the murder was exhibited by the CCTV clippings captured in the closed circuit television fixed in the locality while Shankar was murdered in the busy market area at Udumalpet on 14th March 2016, in the name of honour killing?
6.Why not the Central and State Government establish centre for DNA Finger Printing and Diagnostics (CDFD) to investigate crimes effectively and prove the culpability of the offenders in India which is the second populous Country with thousands of offences committed every minute?
7.Whether the victims of sexual violence are given proper counselling and support system to overcome the trauma and mental agony and paid compensation?
8.Is it a fact, inspite of rise in complaints of sexual violence, many cases are not reported by the victims fearing stigma and exclusion by society and family?
9.Whether alcoholism is one of the main reasons for spurt in offences against women and children?
10.Whether sexual violence against women is due to fall in sex ratio due to female infanticide and foeticide?
11.What are all the reasons for gang rapes of women including toddlers, as more such cases are reported in the recent times?
12.Whether more sexual violence against women is due to ?sex starvation?
among Indian men in view of various prohibition/prescription regarding sex on the ground of culture, religion, morality and ethics?
13.Whether sex offences/crimes against women and girl children are due to lack of knowledge and understanding about sex?
14.Are sex crimes, especially rape is committed due to the wrong impression of the male that women are their objects of pleasure and to prove their dominance and control over women?
15.Is it a fact that the rise in sex crimes is due to easy accessibility and availability of pornographic materials through internet and smart phones which are easily available to all?
16.Is it a fact that now-a-days films and serials shown in the television give tips/clues/ideas for the men, especially, youngsters and juveniles to indulge in sexual violence against women and girl children?
17.Whether the Central Government and the State Government have taken steps to introduce ?Age Appropriate Sex Education? in school curriculum itself to educate students/youngsters about sex to clear their doubts and wrong notions, as per the directions given by this Court in xxxxxxxx vs. State, Represented by Inspector of Police reported in 2015 SCC OnLine Mad 9441?
18.Why not the Central Government and the State Government include a subject 'Moral Education' to teach moral and ethical values and equality of women and girl children in the society to the students especially to boys?
19.Why not the Central Government and the State Government sensitise the public, especially young men about the punishment and stringent laws for sexual assault on women and children?
20.Why not the film stars and celebrities, prominent personalities in the society be roped in, to advise the boys and youngsters to treat the women and girl children equal to men and boys by way of short films, issuance of pamphlets, commercial advertisements, seminars, lectures, etc.,?
21.Why not Central Government appoint a committee/commission headed by a retired Supreme Court Judge with Psychiatrists, Psychologists, Andrologists, Sociologists, Anthropologists, Women activists, Advocates, retired police officers, men of eminence to look into the various reasons especially psychological/mind connected reasons for increase in Sex crimes against women and children and to give recommendations suggesting remedial and preventive measures to be taken by the Central Government including suitable amendment in laws?
22.Why not the Government appoint well trained counsellors/psychologists in every school or for 5 schools, so as to note anti-social and narcissistic personality disorders and identify potential sex offenders and give appropriate counselling with the co-operation of the parents discreetly, to avoid stigma on the children?
23.Whether all the States and Union Territories formulated a uniform scheme for providing victim compensation in respect of rape/sexual exploitation of physically handicapped women as per the directions of the Hon'ble Apex Court dated 11.02.2016 in Tekan @ Tekram v. State of Madhya Pradesh (Now Chattisgarh) reported in AIR 2016 SC 817.
24.Is it a fact that many false complaints alleging sexual assault are being filed for various reasons to wreck vengeance against the opposite party?
25.Why not Government distribute modern devices/gadgets to women which could be used by the women at times of distress or while facing sexual violence?
9.Therefore, this Court suo motu impleads, (i) Union of India represented by its Secretary, Ministry of Home Affairs, New Delhi; (ii) Union of India represented by its Secretary, Ministry of Women Welfare and Child Development, New Delhi; and (iii) National Commission for Women, New Delhi, as the respondents 2 to 4 and Mr.T.Saravanan, learned Senior Central Government Standing Counsel takes notice on behalf of the newly impleaded respondents 2 to 4. Similarly, (i) State of Tamil Nadu represented by its Secretary, Home Department, St. George Fort, Chennai; and (ii) The Director General of Police, Mylapore, Chennai, are suo motu impleaded as the respondents 5 and 6 and Mr.Pugalenthi, learned Additional Advocate General takes notice for the newly impleaded respondents 5 and 6.
10. Mr.T.Saravanan, learned Senior Central Government Standing Counsel appearing for respondents 2 to 4 and Mr.Pugalenthi, learned Additional Advocate General appearing for respondents 5 and 6 undertake to file their response by 10.01.2018.
Call the matter on 10.01.2018.
.