Criminal (Amendment) Act, 2013: Special Reference to Post Nirbhaya Incident

Introduction:

Crime has been a termite to our society since its formation. Increasing crime, increases fear in minds of people. Crime is nothing but can be defined as an act which is done against laws made by the legislature. Personal safety and security of life and property are the most important to any individual. Maintenance of peace law and order is absolutely necessary for any society so that humans can live peacefully without any fear of injury or their lives and property, thus of all branches of law the one which provides protection to the public in such a scenario in CRIMINAL LAW. Indian constitution consists of the Indian penal code which defines each crime along with their punishments.

Let us talk about a little history of Indian penal code. The charter act of 1833 obtained for the engagement of the member to the council of the governor-general.

Thomas Babington MacAulay was engaged for the law council and was given charge on 1834, 27 June. On 14 October 1837, the print of draft was submitted to Lord Auckland who was general in council. The draft code was revised clause by clause by the commissioners, Charley Hay Cameron and D Elliot, who submitted their first report on 23 July 1846. These commissioners submitted the second and concluding report on 23 June 1847.

Then the draft of Indian penal code was sent to the judges of Supreme Court for reference to three of them, advocate general of madras and other judges for the opinions.

Then after that, the revised penal code was read for the very 1st time in 1856 on 28th December in the legislative council. The IPC was published in the Calcutta on 21,24 and 28 January 1857.

It was passed and had received the assent of governor in council in 1860 on 6^th October. It was then IPC came into force on 1^st May 1861.

Purpose of Criminal Law

1. To control human behaviours – at an extent
2. Criminal laws had arisen from the personal vendettas
3. It ensured Punishment for violators

Classification Under IPC

1. Crimes Against Body– Culpable homicide, kidnapping and abduction, assault, murder, etc.
2. Crimes Against Property– Dacoity, robbery, burglary, theft
3. Crimes Against Public Order– Riots, arson
4. Economic Crimes– Cheating, counterfeiting
5. Crimes Against Women– Rape, dowry death, cruelty by husband and relatives, molestation, sexual harassment and importation of girls
6. Crimes Against Children– Child rape, kidnapping and abduction, selling/buying of girls for prostitution, abetment to suicide, infanticide, foeticide

Criminal Law

The term “CRIME” denotes an unlawful act and this is punishable by a state. It’s not a piece of cake to give an exact definition of crime.

It is a system of law that deals with the punishment of offenders for violating laws and harming the public’s feelings. The term is generally referred to substantive criminal laws. Substantive criminal law defines crimes and establishes punishments.

According to Lord Atkin -“ crime is an act or omission in respect of which legal punishment is inflicted on the person who is in default either by acting or omitting to act and criminal law relates to crimes and their punishments. “

Sir William Blackstone- “ crime is wrong whose sanction is punitive and is in no way remissible by any private person, but is remission by the crown alone if remissible at all.”

Difference Between Civil and Criminal Law

1. Crimes, it is against state and harms the whole environment/society whereas civil is against an individual and no state shall be affected.
2. Crime is a public wrong, it can hurt the sentiments of the public, whereas a civil is against wrong is a private in nature and can be resolved privately also,
3. The burden of proof under criminal law lies upon the prosecution to establish guilty beyond doubt and in case of reasonable doubt, the benefit of doubt must always be given to the accused whereas in civil, a defendant is not entitled to any such benefit of doubt.
4. In criminal offence accused is to be proven guilty, in civil a person have to pay damages and is not to be proven guilty but liable.
5. Crime deals with disputes between person and state, civil deal disputes with individuals and organizations.

Elements that Constitutes a Crime

1. Human being
2. An EVIL intention: MENS REA
3. AN ACTUS REA i.e. the act omitted
4. Injury to a human being

Stages of Crime

1. Intention
2. Preparation [do not give rise to any form of criminal liability in 1. 2.]
3. Attempt
4. Commission [liabilities arises in 3. 4.]

1. Intention

Intention or men rea is the first step towards any offence can also be called or known as a mental or psycho stage. Intention contains the motive or motto to do or attempt crime, in this the accused decide the motive of his upcoming crime. The law cannot punish a person who only has an intention to commit a crime or any illegal act or anything illegal.

For example, A has the intention to kill B 5 days later. Now B got to know about the same. B cannot sue A for only having an intention.

 Moreover, if we talk about the mental concept, it is very difficult to judge if a person possesses any such intention. Just by having an intention will not constitute an offence.

2. Preparation

Preparation is considered to be the second stage of committing of the crime. Preparation means to collect the sources and material needed to commit an offence. Again both Intention and preparation alone are not enough to give rise to liability.

Preparation is not punishable because in many cases the prosecution fails to prove that the preparations in the question are for the execution of the particular crime.

3. Attempt

An attempt is a direct step for the commission of a crime. It comes after the preparation of the plan.

According to our law, a person will be held guilty of an attempt to do an offence or crime or any illegal activity after having intention and preparation.

Moreover, a person is guilty of attempting to commit an offence even though the facts are such that the execution of the offence seems to be impossible.

• Also known as Inchoate Crimes
• Example: Section 307 Attempt to Murder

4. Accomplishment

The last stage in the commission of an offence is its successful completion.

 If the defendant gets successful in his attempt to commit the crime or offence or breaking law, he will be held guilty of the complete offence. Moreover, if his attempt is unsuccessful he will be held guilty of his attempt for violating laws and harming society’s feelings.

Actus Rea and Mens Rea

Mens Rea and Actus Reus are two essentials of any crime and are the principles used in most common law countries.

Mens Rea can be defined as the ‘guilty mind’ of a person or have guilty intention to commit an offence or having evil intention, or with the intention of causing hurt to another person, animal, or intention of disturbing the peace os someone.

Presence of Mens rea is an important factor to decide whether an act or offence is culpable, punitive or not. Mens rea represents the specific intention by the accused of committing a crime for which he will be held liable. The accused must be proven to have knowingly committed the crime, and had full knowledge of their actions and must have malafide intent towards the victim.

Actus Reus is the physical factor of a crime. The defendant needs to do something or commit something which should result in injury or attempt to injure someone(plaintiff), in civil cases.

Without a guilty act, there can be no crime and no appeal for damages can arise. An act alone does not make a crime, however, and both the intention of the person and the act itself, if such an act is prohibited, combine to form the crime. In certain cases, circumstances of the case are also taken into consideration, and are often used to either conclusively prove guilt, or can be used to prove reasonable doubt of intention.

(Example: – carrying a knife into someone’s house with the express intention of committing the act of murder, or driving a car on a foggy night and accidentally striking someone attempting to unsafely cross the road.)

• The word Actus connotes a ‘deed’ which is a physical result of human conduct. The word Reus means ‘forbidden by law’.
• It is made up of three constituent parts, namely:
• An action or conduct of the offence
• The result of that action or conduct
• Such act/conduct is prohibited by law

Illustrations:

• An executioner’s job is to hang (no actus reus)
• An army man kills as a part of his duty (no actus reus)
• Actus Reus can also be the omission of an act, by omitting to do something that the accused knows he is bound by duty or law to do

For example: – if a father intentionally forgets his child in a zoo, leading to child’s death. The father can legally be charged for causing the child’s death by negligence. Maybe also charged for with murder, if his intentions of murdering his child can be proven in the court.

The guilty intent and act must both concur. This is what expressed by the maxim actus non facit reum, nisi mens sit rea i.e the act by itself does not constitute guilt unless done with a guilty intent. Crime is not simply an act but an act coupled with full intent and preparedness.

These were the basic terms to understand crime.

Let us take an incident through which we will know about the heinous crimes against sexual harassment and rape with females.

A few years ago on 16 December 2012, a heinous crime took place in Delhi. Commonly known as NIRBHAYA gang rape and murder case.

In accordance with the present scenario and statistics, 32,500 cases of rape were registered. In 2017 approximately 90 per day. The National Crime Records Bureau on October 21, 2019, released its report for the year 2017, which stated that 359,849 cases of crime against women were reported in the country. This clearly tells us that no women are free to breathe with their own choice. This society was never a good option to live for females. It will always be unsafe for them. I being a girl can explain it well.

Case

Let us talk about what left our country spellbound and made our judiciary to develop the laws for women after ‘Nirbhaya’ (a name given to the case)

On 12^th December 2012, a girl and her friend were going home from a movie hall. They were waiting for the bus to go home. One of them (culprit) convinced them to get into an empty bus with dark windows. The girl and her friend were assaulted by 6 of the devils. One out of six culprits was a minor aged 17.

Nirbhaya’s friend, when tried to save her from the criminals, was beaten harshly. Nirbhaya was not only raped brutally but a lot of things were done to her by them which is even beyond disgusting imagination of any human being, of course not those devils.

Nirbhaya was beaten up, her intestines were pulled out, her body was mutilated, her private parts were badly damaged and what not. Later on 29^th December, the brave girl died with multiple organ failure and cardiac arrest. [1]

What defines a Rape?

A rape- crime comes under section 375 of Indian Penal Code 1860. The section defines rape as- “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age.”  

Consent under section 375- it is defined as voluntary communication, clear, with full presence of mind, women give for a certain sexual act. 

Victim under section 375- rape is when a person tries to try to do sexual act on, to, or inside another person without free consent.

Effects of Rape

Rape is not only physical damage to a person as well as mental damage also. Women might suffer from various problems in sexual organs and reproductive organs after the rape and mental trauma. It is really hard to look forward and forget the pain from the mind. Many a time a woman does not even file an FIR against it because of society and family reputation.

 Criminal Act (Amendment Act), 2013

The criminal law amendment act 2013 was passed by the government to attend the section 375 Indian Penal Code, to delete the vagueness in the law and to provide the harsh punitive in rare cases of sexual violence.

The legislature expanded the section to define acts like penetration of the penis into vagina, urethra, anus or mouth or any object or any part of the body to any extent into the aforesaid woman body parts or making someone else to do the same, as defines sexual assault.[2]

Applying mouth and other body parts on the private parts were also classified as offences of sexual assault.

Few Important Highlights of Amendment Act, 2013

• The act is also known as “anti-rape” act.
• Under the lights of these act offences like acid attacks, stalking, and voyeurism were added to the list under the definition of rape and act/provisions mentioned in IPC, 1860.
• Now, even is anyone who will give rape threats would be punishable for the same.
• The punitive has extended up to 10 years from 7 years as the increasing no. of rape cases were taken into account.
• In cases where the victim leads to death or victim would be in a vegetative state, the minimum punishment of 20 years of imprisonment will be given.
• The “character of the victim” would mean nothing and make no difference in granting punishment of the accused of the crime.
• Since one of the accused in this case was a juvenile, another flaw in the system was identified after this case. So, the age for being tried as an adult for violent crimes like rape was changed from 18 to 16 years, that to the Juvenile Justice Act, 2015.

Enhanced Punishments After Amendment Act, 2013

• Acid attack- under section 326A of a criminal act (amendment) 2013 the punishment has been for not less than ten years and may extend to imprisonment for life and fine which shall be just and reasonable to meet the medical expenses of the victim and shall be paid to the victim’s family. Now in present scenario fine up to 10 lakh is to be given by accused.
• Attempt to acid attack- under section 362 B the punishment of imprisonment of not less than five years and may extend up to seven years and shall be liable to fine.
• Sexual harassment- under section 354 A rigorous imprisonment of up to three years or with fine or can be given a punishment of both depending upon the clauses, (I), or (ii), or (iii)

 Imprisonment up to one year, or with fine, or with both in other cases.

This section only protects women. Provisions like physical contact and advances involving unwelcome and explicit sexual overtures; or a demand or request for sexual favours or forcibly showing pornography or making a sexual coloured remark or any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

• Act with intend to disrobe a woman- under section 354 B, In this imprisonment not less than three years but which may extend to seven years and with fine. These sections only protect the woman against anyone who assaults or uses criminal force to any woman or abets such acts with the intention of disrobing or forcing her to be naked.
•  Voyeurism- under section 354C in case of first conviction there will be imprisonment of not less than one year and but which may extend to three years and shall also be liable to a fine and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years and might also be liable for fine.
• Stalking- under article 354 D in this there will be imprisonment of not less than one year but which may extend to three years and shall be liable to crime.

Indian Evidence Act

• New section 53A was added by criminal law amendment act 2013 which works for evidence of character or previous sexual experiences. According to the section in prosecution for commission of rape where the issue was of the consent. Evidence for the character of the plaintiff or victim or of such person who’s previous sexual experiences with anyone shall not correct or relevant. In the matter of such cases the there should be cross-questions occur relating to the previous history of the accused or her consent or quality of consent.
• The pre-existing section 114 A was replaced by a new one. In that, the prosecution for rape under the clause (a) to clause (n) of 372(2) Indian penal code where the sexual intercourse by the accused is proved. Afterwards, the questions raise that it was without the consent of woman who has been alleged to rape and that woman states in her evidence before the court that she did not give any kind of consent that have to presume that the consent was not there.
• The provision under section 146 was replaced, prosecution of rape it shall be allowed to mention evidence or to put questions contradicting, or cross-examining of the victim as to prove their queries or doubts as to general immoral character or previous sexual experience of such person with any other person for proving for providing such consent or quality of consent.
• The victim or any other such person’s previous sexual life or previous or past experiences with anyone should not be a relevant question of such or any kind of consent in the court.
• The existing section 114A was substituted by a new one stating that in a prosecution for rape under clauses (a) to (n) of section 376(2) IPC, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent.

Conclusion

Crimes against women are not a new thing to us, we have been hearing, facing, and experiencing this act since the creation of the earth. In the Nirbhaya case, a girl was victimized just because she was enjoying her freedom and living her life. She was out with her male friend. Our society has always been a big reason for it. It is said that and believed that “beliefs that blame women for their victimization, in turn, provide legitimacy to violence against women”.

Crime against women is increasing day by day. We often say that sex education is important, indeed it is but many a time’s well-educated people do such heinous crimes. It is always about respecting women and their consents. We always talk about, how many girls have been raped and not about how many boys raped them. We always say stay safe, don’t go outside after its dark, and not to boys for the same. We always ask girls to wear non-revealing clothes and not to the boys not to put their devil’s eye on them. We always talk about the victim providing them sympathy and not about the accused. We always ask girls to be careful and not to boys to be respectful.

What not has been done to maintain peace in society, to decrease crimes against women. Today I am really spellbound and have no new options to explain to protect women. Everything starts from where we live, and how we brought up. This is a need of an hour; we need to understand the urgency of the situation.

After the Nirbhaya rape case, where a woman was heinously raped merely. For a few days, the protests were at its peak by women and others. But as the days passed, it lost its spark and anger inside people and ultimately faded away. All three accused have been hanged to death but still, I believe that there should be more serious punishments and fast procedures for rape cases.  But still, the Nirbhaya rape case, known to be the most horrific case of a crime against women in the history of India. Still there a terrible impact of Nirbhaya case on society.

 References:

[1] Nirbhaya case reference

https://blog.ipleaders.in/nirbhaya-gang-rape-case-study/

 [2] Criminal Amendment act 2013

https://www.business-standard.com/about/what-is-section-375#:~:text=Section%20375%20of%20the%20Indian%20Penal%20Code%20defines%20rape%20as,under%2018%20years%20of%20age.%22