CRIMES ALWAYS SPEAK

Among the seven leading questions in the science of criminology, one important is ‘who’—that is, who is the murder victim.

This question of ‘who’ arises in case of such dead bodies that are badly torn and mutilated. We know how murderers pack disfigured and even hacked dead bodies in boxes or bags and throw them at distant or deserted places, as to render the identification near impossible. There is another situation too in which the question of ‘who’ (identification) arises.

When a flying aircraft crashes, usually not only all those on board—crew and passengers—get killed, but also their burnt or half-burnt bodies are distorted beyond recognition; thus a majority of these bodies are rendered as unidentifiable. The question in such tragic situation arises: ‘Who is who among the heap of dead bodies and their torn parts?’ It can be asked in such a context: What is the need of identifying the dead bodies, when the dead are dead and it is not a case of mass murder but one of mass death due to accident?

This question ‘who’ arises in such cases mainly because the insurance companies, who have to pay huge claims to the kith and kin of the dead, refuse to pay till the fact is fully established that the particular insured person was really travelling by the ill-fated plane and had actually died in the accident. For the purpose, the insurers insist on death certificates issued by competent doctors. Now how can it be determined which body in a heap of 60–70 or more belongs to a particular person?

How much havoc, loss of life and disfiguring of remnants of the killed people causes can be gauged by this example: when a Boeing 707 was flying at high level, it was struck by lightning, as a result of which it was changed into bits before it fell down. All the 81 persons on board died as a result. The parts of the plane and bodies of the killed or their parts and limbs got scattered over an area a mile in diameter. The bodies of almost all the passengers and crew members had been torn in bits and parts.

To identify the dead among the heap of limbs and parts, forensic experts use a special system for identification. Wherever the parts and bits of human bodies like hands, feet, arms, face, fingers, legs or their parts, etc., are found, these are immediately tagged and then stored in safety. Each tag bears a number. The numbers begin from figure ‘one’. Thus every recovered part of human anatomy gets a number. Before delivering a part of a limb for testing, its number is inscribed on a small board which is planted at the particular spot where the limb or part of a limb was recovered. This is done in view of the possibility that if the head of a dead passenger is found at one place, his torso or other limbs may be found at different places quite apart from each other.

It is important to record here that it is not necessary that all the body parts of the annihilated persons of the plane will fall along the ground. The way the wrecked plane falls down af-

‘G~’)

free the man until his wife submits to the officer, how can one prove rape if she does so? No person in the right mind would imagine that such an act was not rape, yet the law would not recognise it so before 1983. The women had to prove she had not consented. The rapist was considered innocent unless proved otherwise.

The change in rape laws in 1983 improved the situation to a great extent. Among other things, the punishment for rape was made more severe. Before, the punishment prescribed under Section 376 of the IPC provided for a maximum sentence of life imprisonment, but there was no minimum limit. Thus, in theory, a rapist could get away with a sentence of, say, just one month.

In 1983, although the legislature failed to increase the maximum sentence to capital punishment, as was vehemently demanded by women’s organisations, it prescribed a minimum sentence of seven years’ imprisonment. Every rapist, on being found guilty thereafter, had to undergo a minimum imprisonment of seven years. Besides, an important provision—Section 376(2)—was added to the IPC. This section introduced the concept of some special kinds of rape and prescribed a minimum of ten years for these cases. Furthermore, in such cases, the imprisonment had to be of a rigorous nature only. These included rape by a police officer within the premises of a police station; rape by a public servant of his junior while taking advantage of his official position; rape by an official in a jail or remand home of an inmate; rape by someone on the staff of a hospital of a woman in the hospital; rape of a pregnant woman; rape of a girl under 12 years of age; and gang rape.

Rape by persons who are in a position of authority, e.g. police officers, jail wardens, hospital staff, etc., is generally termed custodial rape. Gang rape is a situation when a woman is raped by one or more than one person from amongst a group of persons acting in furtherance of their common intention. The important thing is that in such situations each of the persons within the group will be deemed to have raped the woman even if each one of them did not actually have sexual intercourse with her. Thus, if five men catch hold of a woman and only one ravishes her in order to, for instance, humiliate her husband because of some old vendetta, all the five men will be imprisoned for a minimum of ten years.

It is very difficult for the victim to prove absence of consent, especially in cases of custodial rape, so a special section was added to the Indian Evidence Act (IEA). According to the new provision—Section 114A of the IEA— in cases of custodial rape, gang rape and rape of a pregnant woman, if the victim states in court that she did not consent, then the court shall presume that she did not consent and the burden of proving consent shall shift to the accused. This was a major reform in the law.

The legislature did not stop at this. There can be cases when a person in authority can get a woman to have intercourse with him “willingly” by offering handsome rewards in return. A superintendent of a jail can offer better living conditions to a woman prisoner if she “willingly” submits to him. Such cases will not amount to rape; nevertheless, they do signify abuse of official position. For such cases, four special provisions—376A, 376B, 376C and 376D—were added to the IPC and a punishment of five years’ imprisonment provided. In effect, if a person in authority has had sexual intercourse with a woman in his custody, he will firstly have to prove that the woman in question had consented. If he can’t prove this, he will be guilty of custodial rape and shall have to undergo a minimum rigorous imprisonment of ten years. Secondly, even if he is able to prove that the woman did consent, he may not be charged with custodial rape, yet he can be imprisoned for five years under Sections 376B, 376C and 376D.

It would seem that enough changes have been made in the rape laws to bring it on par with that of Western countries. However, there are still some glaring deficiencies. For one thing, the law does not provide for separate and speedy trials for heinous crimes such as child rape. The definition of rape too is finite restrictive. For raping a woman, penile penetration must be proved. One can ravish a woman equally or much more violently by shoving, for example, an iron rod into her private parts. Yet such a man would not be held guilty of rape. Several such cases have indeed come to light.

But the worst thing is the continued existence of Section 155(4) of the IEA, which provides that when a man is prosecuted for rape and if it is shown that the woman in question is of immoral character, then her evidence will not be taken into account. It may be argued that this provision offers protection to the accused against false allegations of a woman whose character is suspect. Yet consider Section 54 of the same Act. Among other things, it says that in cases of rape, the fact that the accused person is a bad character is irrelevant. In effect, for the purpose of proving that a man did rape the prosecutrix, it is irrelevant to show that he has a bad character. If the bad character of the prosecutrix is considered in cases of rape, why not the bad character of the accused too?

In fact, it can be argued that these provisions are unconstitutional as they contravene the equality clause under Article 14 of the Indian Constitution. Is it not highly unfair to apply different standards to the accused and the complainant only in rape cases?

(To protect the identity of the individuals, their names, as well as the various dates of occurrence have been changed)