By Adv. T.R.S. Kumar
After the Nirbhaya Case, changes have been brought about in the definition of Rape to a great extent. The amendments carried out in the Indian Penal Laws, which came into effect from February 3, 2013, whereby all the possible loopholes for the escape of the offenders in rape cases have been sealed off encompassing a broad definitionfor Rape. Appropriate Sections have been introduced in the Evidence Act and the Code of Criminal Procedure so that the criminals cannot get away with, which is the way the public is generally interested. Butmost of the charge-sheeted cases in Kerala are of consensual sex, which the Police register as the offence of Rape, which paves the way for sending the innocents to Jail.
In such cases, taking note of the actual situation, the Court grants anticipatory bail and sometimes, the accused are even acquitted. In this background, the rape cases cannot be analyzed by the courts by mere microscopic view of law and determine the cases within the maxim “Let thousands of accused escape, but none of the innocent be punished”.
Survivors in Kerala
In most of the rape cases in Kerala, after the police submitting the charge-sheet, the victims or the rape survivors, have changed their statements and or willfully not identified the accused in the trial court, whereby the accused get the chances of escaping the clutches of law. At times, rape cases are often used to be a tool of bargain for economic interest or any some other vested interests. Unfortunately, thisphenomena is on the growth. It would be a matter of great interest, if the present financial status of the rape survivors, whose cases have been registered, and that ofthe financial status of the public prosecutors and their accomplishers,is investigated by the Police. It is sarcastic to address the women who engaged themselves in consensual intercourse with their men counterparts, as “Survivors” or “Victims.” In effect, they are lust crazies. Our society in general and the judiciary in particular are to be equipped with to differentiate the difference between forced sex and voluntary sex from the nomenclature of the word “Rape” which has been conveniently misused and misinterpreted.
Franco Case
I have studied in detail the much celebrated Bishop Franco’s Case and the debate on the Judgments of this case by the renowned men as panel members in TV, Social Media and Print Media, and noted their observations. For the media uproar on any issue, has a life span of a couple of days until they get a new issue for debate. Two decades after pronouncing the Judgment in the Franco case, even if there has been no substantial evidence, the Court’s attitude was to convict the accused in any case. The media trial is opposed to Courts attitude. The trend of media trial, whereby forming the public opinion and putting pressure on the Courts by the Media, is over. It is a human rights violation defaming persons who are arrayed as accused in criminal cases by media trials.
Nobody is willing to be an accused. One is getting involved in a criminal case by various kinds of socio-economic situations. The Judgment in the case of Franco Mulackal is noteworthy. The trial court analyses the issues involved in the crime through wide spectrum of Evidence Act, and found the accused innocent in the matter of question of law and in the fact of law, which is sustainable. The Judgment in the matter of Franco Case is the matter of study for Courts, Legal Practitioners and Law Students as well, which deserves a place in the Library of those who are interested in Law.
Dileep Case
Of late, there is no other case to be cited except the Actor Dileep’s Case and the case of Franco Mulackal. Both of these cases have been severely subjected to media trial. There is no piece of law in India, in order to seek compensation for damage and humiliation caused to the accused who has been entangled in a false and concocted case. That kind of Law is the need of the hour. As a matter of fact, Justice B.S. Chauhan, President of 277th Law Commission, recommended such a legislation in his Report.
Had there been such a Law, Nambi Narayanan, would not have lost a worthy compensation, and Sharukh Khan’s son Aryan would not have been entangled with a false case. As Justice Madan B. Lokur has rightly pointed out, Section 211 of IPC is to be subjected to more amendments so as to include compensation to the victims of false cases.
Vijay Babu Case
In the case of Vijay Babu, film director and producer, while considering the anticipatory bail, the Kerala High Court examined in detail the Whatsapp messages, phone calls exchanged between the petitioner and the accused, and the case diary. The Hon’ble Court granted bail to the accused in this rape case by detailing out 12 reasons. (Judgment Pages 18,19,20). Even though the Petitioner had approached the Supreme Court, the Court did not interfere.
It is my fervent hope that in the foreseeable future the Supreme Court would issue guidelines to be adhered to, while registered a rape case. The Lady Justice needs to open her eyes for the genuine survivors of rape, and not for the lusty species. The general public has to turn the coin and differentiate the grain from the chaff.
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