Degrading 2-finger test must end: SC

Kanu Sarda @kanusarda

New Delhi: The humiliating practice of subjecting a woman to a two-finger test to determine whether she was raped will come to an end after the Supreme Court (SC) ruled that it “violates the privacy, physical and mental integrity and dignity” of rape victims.  “This test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent,” a bench of justices BS Chauhan and FMI Kalifulla ruled. The justice Verma committee has also said victims should not be subjected to this test. The SC was hearing a case involving the rape of a 13-year-old and said the two-finger test was immaterial here as the question of consent did not arise. Last week, it dismissed the appeal of the rape convict from Haryana who had challenged his seven-year sentence for committing rape in 2001. “Such tests are not only inhumane, but they also shatter the girl, who is already traumatised, to another round of humiliation. The apex court has brought relief to all the victims,” SC lawyer Rekha Aggarwal said. Rape survivors were entitled to legal recourse that did not re-traumatise them or violate their dignity and physical and mental integrity, the bench noted, citing the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985.  “Medical procedures should not be carried out in a manner that constitutes cruel, inhuman or degrading treatment,” the SC said. “A rapist not only causes physical injuries, but also leaves behind a scar on her dignity, honour, reputation and chastity." Source::::  DNA,  23-04-2013, p.01.http://epaper.dnaindia.com/story.aspx?id=44221&boxid=28942&ed_date=2013-04-23&ed_code=820009&ed_page=1

Fast-track court gives death for rape-murder in 10 days

Smriti Singh TNN 

New Delhi: Ten days after being set up to try cases of sexual offences against women, a fast-track court in Dwarka, west Delhi, on Tuesday gave the death sentence to a 56-year-old farmhouse guard for raping and killing a three -year-old girl in 2011.  This was the first sentence handed out by any of the fast-track courts set up in the capital after the gang-rape of Nirbhaya in December. 
    Terming the crime as “most diabolic and gruesome”, additional sessions judge Virender Bhat sent the accused, Bharat Singh, to the gallows, saying the case fell in the “rarest of rare” category.  The victim had died while she was being raped and her internal organs had come out, the court said. 
 
No trace of Pune kidnap and murder accused  
The name of a key accused in the 2007 kidnap and murder of a Pune techie, who had fled policy custody, has gone missing from the list of absconders too.

 ‘Rapist didn’t heed the cries of minor victim’ 
    There is a steep rise in crimes against women, particularly minor girls. Time has come when the courts have to take a stern view of such crimes and inflict harsher punishment possible upon the perpetrators… so that a stern message is sent to society,” the court said. 
    On April 10, 2011, the girl was returning to her house in Kapashera in southwest Delhi when she strayed towards the farmhouse. The girl was called inside by Singh, who was alone on duty, and was raped by him, the prosecution had said. 
    The court noted that the girl was subjected to his “lust” in such a “ghastly” manner that she died during the crime. The convict was so merciless that after the girl died he threw her body in some bushes inside the farmhouse. It was discovered a couple of days later after the place started stinking,” it said. 
    The court said the brutality of the crime was similar to that of Nirbhaya’s. “He did not heed the cries of the minor victim… It was a ghastly and heinous crime, and the convict opted to do it in such a brutal manner that her internal organs were pulled out,” it said. The convict was awarded capital punishment for murder under section 302 and life sentence for rape (section 376) besides a fine of Rs 1 lakh. 
    The defence’s argument that section 302 was not made out as Singh had no intention of killing the girl, did not impress the court. Holding Singh guilty of murder, the court noted that medical evidence clearly showed that the girl had died due to the commission of rape. 
    Demolishing the arguments of the defence, the court said the fact that he committed rape on a threeyear-old girl knowing that the child would not be able to stand the pain and trauma, a case of murder was made out.

Source:::: The Times of India, 16-01-2013, p.01, http://epaper.timesofindia.com/Default/Client.asp?Daily=TOIM&showST=true&login=default&pub=TOI&Enter=true&Skin=TOINEW

SC quashes Bhandarkar rape charge Swati Deshpande TNN  Mumbai: The Supreme Court on Monday quashed an eightyear-old rape case filed against film-maker  Madhur Bhandarkar by actress Pretti Jaiin, citing her wish to not pursue the charges as well as non-observance of laid-out legal procedures by a Mumbai magistrate.      Bhandarkar had moved the apex court this March against a Bombay high court order in which it declined to dismiss the case. When the hearing commenced in the SC on Monday, the director’s counsel said Jaiin did not wish to pursue the case since she was planning to get married soon.   Set to marry, actress did not want to prolong ‘rape’ case  SC Considers Wish & Merits Of The Matter      National Award-winning director Madhur Bhandarkar got reprieve from the Supreme Court on Monday as it quashed an eight-year-old rape case against him. His counsels Harish Salve and Shreyansh Mithare began the day’s proceedings in the court, saying there was a “new development”. Salve announced that the complainant, actress Pretti Jaiin, does not want to proceed with the case since she is getting married. The revelation sent a ripple through the court.      The bench of Justices H L Dattu and C K Prasad asked if Jaiin was marrying Bhandarkar. “No,” promptly replied Jaiin’s counsel B H Marlapalle, a former judge of the Bombay high court. “Bhandarkar is already married. She will be marrying someone else.” Marlapalle said the actress wanted to “move on”: “Eight years have passed since the FIR was filed. She wants to start life afresh. She is already engaged.” He suggested that no purpose would be served in keeping the matter pending.      The judges took into account Jaiin’s wish but thereafter heard the matter on merit. In 2004, the actress had accused Bhandarkar of “indulging in sexual intercourse with her 16 times from 1999 to 2004” on the promise of casting her in his movies. Jaiin had claimed that whenever she resisted, he threatened and coerced her.      Bhandarkar’s appeal in the apex court said both the HC order of March 2012 and an order passed by an Andheri magistrate in September 2011 were wrong and ought to be set aside since they caused “grave injustice” to the film-maker whose movies have won “critical acclaim”.      The Andheri magistrate, Babanrao Pantawane, had in 2011 held that there appeared to be an “ingredient of an offence of rape and criminal intimidation against Bhandarkar” and ordered that criminal action—which could include arrest and trial—must start against him. Prior to this order, the Mumbai police had twice asked for the rape case to be closed, arguing lack of evidence.      The magistrate’s directions sent Bhandarkar rushing to the Bombay high court, which first stayed all further progress in the case. But in March this year, the HC rejected his plea for Jaiin’s complaint and the magistrate’s order to be quashed. The matter thus landed in the SC.      On Monday, finally, things swung in Bhandarkar’s favour. The Supreme Court judges asked if the magistrate had recorded the statements of anyone apart from Jaiin. They were informed that he had not. Bhandarkar’s lawyers said the magistrate ought to have recorded the statements of witnesses too, since serious charges of rape had been levelled against the director. The SC said, “The magistrate did not follow the procedure laid down under section 202 of Criminal Procedure Code and chose to examine only the complainant (Jaiin).”    BOLLYWOOD-STYLE DRAMA PRETTI’S ACCUSATION In 1999, film-maker Madhur Bhandarkar was scouting for a new actress to essay the leading role in his venture. He approached Pretti Jaiin and promised to cast her in the lead. He then took advantage of her ambition, she alleged, and indulged in sexual relations with her but never fulfilled his promise   LEGAL JOURNEY July 7 2004  Jaiin sent a legal notice to  Bhandarkar in which she accused him of having sexual intercourse with her 16 times in five years after giving false promises of casting her in his movies. The notice claimed that whenever she resisted, Bhandarkar threatened her. Jaiin said he denied her a role in four films and gave him 48 hours to cast him in his next feature film July 22 2004 Jaiin lodged an FIR with Versova police, accusing Bhandarkar of rape under section 376 of the Indian Penal Code July 30 2004 A sessions court granted anticipatory bail to Bhandarkar. It observed that medical evidence would serve no purpose in the case since considerable time had elapsed, because he was a married man and seeing as the victim was “habitual to sexual relation” Dec 8 2004 Bombay high court confirmed the sessions court order Jan 16 2006 Police filed a ‘B-Summary’ report  before Andheri magistrate to close the case, saying “no evidence” was found against Bhandarkar. The investigating officer (IO) stated the complaint was false Sep 15 2006 Magistrate issued a notice to Jaiin after  agreeing with the IO’s views and asked the actress “why action should not be taken against her” Dec 19 2008 Magistrate directed further investigation into the original FIR without examining the victim on oath. The IO recorded additional statements of Jaiin and the witnesses she named July 18 2009  Versova police submitted another report citing lack of evidence Nov 11 2009 Metropolitan Magistrate, Railway Mobile Court Andheri, rejected the ‘B-Summary’ report and said it will conduct an inquiry under section 202 of the Code of Criminal Procedure Dec 4 2010 Magistrate recorded Jaiin’s  statements Aug 2 2011 Magistrate recorded Jaiin’s statements Sep 9 2011 Magistrate issued “process” to proceed against Bhandarkar for rape charges Oct 2011 Bhandarkar moved the HC, asking that the criminal proceedings against him be quashed Mar 22 2012 Bombay HC rejected Bhandarkar’s application, said he must face proceedingsMar 27 2012  Bhandarkar approached the Supreme Court against the HC order Nov 5 2012 Apex court quashed magistrate’s order.   EARLIER COURT OBSERVATIONS SESSIONS COURT | While granting Bhandarkar anticipatory bail in 2004: Medical evidence would serve no purpose since There was no explanation to the silence time had elapsed, because he was a married man and of the victim for over four years and no seeing as the victim was “habitual to sexual relation” proof of threat to her life as alleged    BOMBAY HIGH COURT | While confirming Bhandarkar’s anticipatory bail:      The claim of the complainant that she was repeatedly raped under threat seems to be unfounded… This is so because the offence was allegedly committed since 1999 but was not been reported till now and… the complainant accepts that initially she consented to keep physical relations with the respondent      It cannot be overlooked that Pretti is ambitious and intends to somehow make a career in the film industry… There is... record in court that would cast doubt on her credentials   While rejecting Bhandarkar’s plea to quash criminal proceedings:      Proceedings do not show vindictive abuse of process of court by a frustrated actor or model    SUPREME COURT OBSERVATION      The magistrate had not followed the procedure laid down in law for issuance of process under section 202 of Criminal Procedure Code. It had chosen instead to examine only the complainant (Pretti Jaiin)…. She is not interested in pursuing the complaint any further I want to marry and settle down in life. I want peace. The case was delaying my marriage. The only solution to end the eight-year-long fight was to resolve our differences and move on. We met outside court and found this was the best way to end the battle — Pretti Jaiin It is good that she has moved on in life. I was waiting in the corridor when the judgment came. I didn’t know how to react. I just walked away with tears in my eyes. Police investigated the case and found the allegation false — Madhur Bhandarkar

Source::::: The Times of India, 06-11-2012, p.01. http://epaper.timesofindia.com/Default/Client.asp?Daily=TOIM&showST=true&login=default&pub=TOI&Enter=true&Skin=TOINEW

Graft, rape cases can’t be quashed after pvt deals: SC Dhananjay Mahapatra TNN  New Delhi: In a landmark judgment, the Supreme Court on Monday put corruption at par with heinous offences and ruled that FIRs registered under various sections of Prevention of Corruption Act cannot be quashed by high courts even if the victim and offender reach a settlement. The accused will have to face trial after completion of investigation, the court said.      In some recent cases, persons accused of rape charges had offered to marry the victim to escape punishment which ranged from 7-10 years of imprisonment. This too can no longer be a valid settlement for the rape accused to seek quashing of criminal proceedings, the court ruled.      A bench of Justices R M Lodha, A R Dave and S J Mukhopadhaya said, “Heinous and serious offences of mental depravity or offences like murder, rape, dacoity etc cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society.      “Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences.”      Writing the judgment for the bench, Justice Lodha said, “Criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry etc or family disputes, where the wrong is basically private or personal in nature and the parties have resolved their entire dispute.      The SC said the HCs’ power to quash a criminal proceeding or an FIR or complaint in exercise of its inherent jurisdiction was distinct and different from the power given to a criminal court for compounding of the offences under Section 320 of the Criminal Procedure Code. The SC said that heinous offences like murder, rape and dacoity, and those under special statutes like the anti-corruption Act, are not private in nature.     Source::: The Times of India, 25-09-2012, p.09. http://epaper.timesofindia.com/Default/Client.asp?Daily=TOIM&showST=true&login=default&pub=TOI&Enter=true&Skin=TOINEW