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Report No. 84

Rape and Allied Offences: Some Questions of Substantive Law, Procedire and Evidence

Contents
Chapter 1 Introductory
1.1 The criminal justice system and the offence of rape
2. The crisis of rape
3 Reference by Government
4. Suggestions for amendment
5. Role of the criminal law
6. Earlier reports of the Law commission
7. Method adopted
8. Desultory implementation
9. Steps to be taken to avoid suspicion of harassment
Chapter 2 Rape and Indecent Assault: The Substantive Law
I. Present Law as to Rape
2.1. Scope
2. Section 375, Indian Penal Code
II. Recommendation in 42nd Report
3. Earlier Report
4. Recommendation in earlier Report as dealing with force and fraud
III. Consent: Its Significance
5,6. Absence of consent
IV. Reality of Consent: Section 90
7. The concept of free consent-section 375, 3rd clause and section 90
V. Free and Voluntary Consent
8. Effect of recommended amendment
9. Effect of modifications recommended as to fear of injury and criminal intimidation
VI. Use of Intoxicants and Stupefying Substances
10. Drugs, intoxicants and anesthetics
VII. Violence Not Necessary
11. Overt violence, if necessary
12. The proof of violence
VIII. Submission Not Amounting to Consent
13. Submission and consent
14. Cases of helpless resignation
IX. Recklessness
15. Recklessness
X. Other Suggestions Relevant to Consent
16. Suggestion to add cases of reprisal by person in authority
17. Fear of agony
XI. Rape of Girls below Minimum age
18. Section 375, fifth clause
19. History
20. Increase in minimum age
XII. Comments on Earlier Report
21. Earlier Report
22. Freedom of consent as dealt with in earlier Report
23. Sexual offences besides rape
XIII. Recommendation
24. Recommendation as to section 375
XIV. Punishment for Rape
25. Section 376-Minimum punishment for rape by more than one person-Suggestion not accepted
26. Aspect of group liability considered
27. Minimum punishment not favoured
XV. Assaults, Outraging Modesty of Women and Indecent Assaults
28. Section 354 and proposed section 354A
29. Consent not to be a defence
30. Need for change
31. Revised section 3(19)
XVI. Indecent Gestures
32. Section 509, I.P.C
33. Eve teasing in Delhi and charges under the Police Act
34. Recommendation as to police practice
XVII. Obscene Telephone Calls
35. Section 294, I.P.C.-Obscene telephone calls
36. Recommendation to amend section 294
Chapter 3 Arrest and Investigation
I. Introductory
3.1. Scope
2. Instructions issued by Ministry of Home Affairs
3. Feeling of insecurity
4. Need for change in attitudes of the police
II. Arrest of Women
5. Arrest-Section 40, Code of Criminal Procedure
6. Recommendation as to section 46(1), Cr. P.C., 1973
7. Section 46-Time of arrest
8. Recommendation to amend section 46
III. Detention of Women
9. Section 417A, Cr. P.C. (Proposed)-Detention in women's institutions
10. Suggestions regarding presence of male relative near the lock up
IV. Interrogation of Female Victims of Sexual Offences
11. Reporting and investigation
12. Investigation by female police-No statutory change recommended
13. Practice to be adopted in metropolitan cities
14. Interrogation of child victim of rape-Statutory provision recommended
15. Amendment of section 160 recommended by insertion of sub¬sections (3) to (7)
V. Interrogation of Women at The Place of Residence
16. Section 160(1), Proviso, Cr. P.C
17. Defect in drafting
18. Recommendation to revise section 160(1), proviso, Cr. P.C
19. Punishment for violation of section 160(1) not adequate
20. Section 166A, I.P.C. recommended
VI. Interrogation of Women-time of
21. Interrogation of women after sunset and before sunrise
VII. Social Workers
22. Association of women social workers with investigation
23. Investigation an arduous task
24. Recommendation to amend section 160, Cr. P.C
25. Amendment of section 160 recommended by insertion of sub¬section (8)
VIII. Police Report to be Accompanied by Medical Reports
26. Section 173(5), Cr. P.C
27. Section 173(5), Cr. P.C
IX. Investigation where Police Officer is The Accused
28. Investigation into cases where a police officer is an accused
X. Non-Recording of Information Relating to Cognisable Offences
29. Section 167A, I.P.C.-Refusal to register case of rape
30. Penal sanctions needed
31. Present law
32. Insertion of section 167A, Indian Penal Code recommended
XI. Other Points Concerning Investigation
33. Other points made in suggestions
34. Conferment of Magisterial and Police powers on women
35. Questions relating to medical examination
Chapter 4 Medical Examination of The Accused and The Victim
I. Importance of Medical Examination
4.1. Scope
2. Position of examining doctor
3. Importance from the legal point of view
4. Proper examination-conditions for
II. Examination of The Accused
5. Provision in the Code-Need for timely examination
6. Particulars to be entered and reasons to be given
7. Recommendation as to section 53, Cr. P.C
III. Examination of The Victim
8. Section 164A, Cr. P.C. (To be added)
9. Need for legislative provisions
10. Section 164A, Cr. P.C. recommended
11. Medical examination of the victim of rape
IV. Chronology and Modes
12. Chronology and modes of examination
13. Examination of various body sheets
14. Injuries
V. Rapid Reference Sheets
15. Rapid reference sheets
VI. Conditions in which Examination is Conducted
16. Conditions for physical examination
17. Order of examination
18. Conditions and equipment
VII. Colour Photographs
19. Colour photographs
Chapter 5 Procedure for Trial, Trial in Camera and Publication of Proceedings
I. Cognisance of Offences
5.1. Scope of Chapter
2. Section 198(6), Cr. P.C., 1973-Amendment recommended
3. Court competent to try
II. Stages of Trial
4. Procedure for trial-the chronology
III. Trial in Camera
5. Trial in camera-Section 327, Cr. P.C
6. Need to modify general rule
7. Recommendation to amend section 327, Cr. P.C
IV. Publication of Proceedings
8. Publication of names of parties
9. Special provisions
10. Preserving anonymity of complainant and accused in sexual offences
11. Anonymity at the stage of investigation
12. Publicity at the stage of trial-Trial in camera and penalty for illegal publicity to court proceedings
13. Section 228A, I.P.C. (New)-Recommended
14. Consequential amendment of other laws
15. Publication after conviction
V. Examination on Commission
16,17. Examination on commission
VI. Participation in Trial
18. Participation by organisations & suggestion considered
19. Risks attendant on acceptance of the suggestion
20. Peculiar features of a case relating to rape
Chapter 6 Publicity on Conviction
6.1. Suggestion to give publicity
2. Discussion in earlier Report
3. Suggestion not accepted
Chapter 7 Evidence
I. Introductory
7.1. Scope
2. Disadvantageous position of the victim
3. Issues in the field of evidence
4. Earlier Report on Evidence Act
II. Complaints
5. Complaint (section 8) and the doctrine of "hue and cry"
6. Matter needing change
III. Want of Consent-how Proved
7. Burden of proof of want of consent
8. Section 114, Evidence Act
9. Signs of violence
10. Need to change the law
11. Recommendation to add section 111A in the Evidence Act
12. Presumption of want of consent
13. Burden of proof in case of a person in authority
IV. Corroboration
14. Corroboration
V. Past Sexual History
15,16. Past character as a relevant fact-Sections 8, 9, 11 and 14, Evidence Act
17. Section 155(4), Evidence Act
18. Section 146, Evidence Act
19. General approach adopted
20. Sections 155(4), 146 and 53A (proposed), Evidence Act-Recommendation
21. Section 155(4) and sexual relations with other persons
22. Section 155(4)-another point for amendment
23. Difficulties caused by section 155(4)
24. Harm to reputation-danger of
25. Amendment of section 155(4)-recommendation
26. Section 146, Evidence Act
27. Amendment of section 146
28. Section 53A (proposed) to exclude evidence as to character
VI. Improper Questions
29. Section 150, Evidence Act-Amendment recommended
30. Various amendments suggested in section 150
VII. Character of The Accused
31. Character of the accused
Chapter 8 Conclusion
8.1. Effect of our proposals
2. Changes whether going for enough or too far
3. Effect of films and the real challenge
Appendix 1 Copy of Letter No, PS/lS/lA/80, Dated 27th March, 1980 from The Secretary, Department of Legal Affairs to The Member-Secretary, Law Commission of India
Appendix 2 List of Persons and Bodies with whom Discussions were Held


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