NATIONAL LEGAL RESEARCH DESK
The trial court while convicting the accused in St. Vs. Pahlad, FIR No. 155/11, PS Keshav Puram stated that – Here, I may observe that the prosecutrix is a victim of Digital Rape that is manual manipulation of clitoris, vulva, vagina, or anus for purpose of sexual arousal and stimulation by use of fingers, sticks, bottles, objects etc. The Courts cannot extend the definition of rape so as to include all forms of penetration such as penile/ vaginal penetration, penile/ oral penetration, penile/ anal penetration, finger/ vaginal and finger/ anal penetration and object/ vaginal penetration as observed by the Hon’ble Supreme Court in the case of Shakshi Vs. Union of India reported in 2004 Cri.L.J. 2991 (2892) (SC) wherein the Hon’ble Supreme Court had observed that “….the definition of rape in Section 375 cannot be enlarged so as to include all forms of penetration such as penile/ vaginal penetration, penile/ oral penetration, penile/ anal penetration, finger/ vaginal and finger/ anal penetration and object/ vaginal penetration, as it may violate the guarantee enshrined in Article 20 (1) of the Constitution of India which says that no person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charges as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence…”
There is growing demand world over for inclusion of Digital Rape/ Male Rape/ Oral Rape/ Anal & Rectal Rape within the definition of Rape and the fact that it is the cases like the present one which sometimes reflects the Institutional helplessness in appropriately dealing with the crime on account of the lag in law. Section 377 Indian Penal Code to a large extent does cover case of carnal intercourse committed by a person against the order of nature but technically its applicability is limited and by operation it becomes difficult to include certain category of cases where the offence has been committed by the offender on another with an object. It is only to cover all kinds of penetrations without a person’s consent in any manner, that the need for a re-look at the existing laws has been necessitated. The present case is an eye opener and it is time that the Legislature take a serious note of the extent of depravation which exists in the Indian Urban Society, victims of which are usually small children and senior citizens being easy targets; the cause of which could be the X-rated material easily available in the market and internet. This case sounds a wake up call for the Indian Legislators to step in and think about having a re-look at the definition of Rape so as to specifically include the instances of Digital Rape/ Male Rape/ Anal Rape and make the offence Gender Neutral or to formulate a separate exhaustive legislation covering all categories cases of sexual assault similar to the Legislations which exist in Scotland, Ireland, Australia, Victoria (Sexual Assault Act) and United States [Violence Against Women Act, 1994 (VAWA)]. The definition of Rape in the Criminal Code of Queensland has been now enlarged to include the instances of Digital Rape. Rape as provided under Section 349(2) of the Criminal Code of Queensland (amended) covers instances when the person has carnal knowledge with or of the other person without the other persons consent; or the said person penetrates the vulva, vagina, or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent; or the said person penetrates the mouth of the other person to any extent with the person’s penis without the person’s consent and the maximum penalty provided for the offences of Rape/ Digital Rape/ Oral Rape is Life.
Coming now to the aspect of compensation to the victim of aggravated sexual assault/ Digital Rape, I may observe that at the time of the incident the victim aged about 80 years was a destitute who had been abandoned by her family and was living in a public park where she sustained herself on the mercy of the residents. This Court vide order dated 19.10.2011 had directed the information regarding the condition of the victim to be placed before the competent authority under the Welfare of Parents and Senior Citizen Act, 2007 pursuant to which the victim has now been lodged at an Old Age Home at Dwarka. As per the information received by the Court till date the old age pension is not being released to her, despite the directions of the Deputy Commissioner (competent authority under the Welfare of Parents and Senior citizen Act, 2007). It is unfortunate that the Government Red-Tapism spares none, not even a senior citizen destitute. The case of a destitute who is a victim of an aggravated sexual assault is required to be treated at priority at all levels
in the government and the insensitivity of the System qua the plight of these victims is appalling. The Hon’ble Apex Court has time and again observed that the subordinate Courts trying the offences of sexual assault have the jurisdiction to award the compensation to the victims being an offence against the basic human right and violative of Article 21 of the Constitution of India. It has been so observed by Hon’ble Mr. Justice S.Saghir Ahmed and Justice Kuldip Singh (Ref: Bodhisattwa Gautam Vs.Subhra Chakraborty reported in AIR 1996 SC 922) that the jurisdiction to pay compensation (interim and final) has to be treated to be a part of the over all jurisdiction of the Courts trying the offences of rape which is an offence against basic human rights as also the Fundamental Rights of Personal Liberty and Life. In the present case keeping in view the fact that the process of grant of Old Age Pension to the victim has already been initiated, therefore in order to provide Restorative and Compensatory Justice to the victim who requires constant medical assistance in view of her age requires State attention and rehabilitation. I hereby direct the GNCT of Delhi through Principal Secretary (Home) to grant an compensation to the tune of Rs.50,000/- (Rs. Fifty Thousand) to the prosecutrix ‘S’ wife of Babulal presently lodged at Old Age Home Bindapur, Pocket-4, Dwarka, Delhi which amount shall be used for her welfare under due guidance/ advice of the Welfare Officer. [Ref.: Hari Kishan & State of Haryana Vs.Sukhbir Singh & Ors. reported in AIR 1988 SC 2127 and Bodhisattwa Gautam Vs. Subhra Chakraborty reported in AIR 1996 SC 922]. I hereby direct that a copy of this order be sent to the Principal Secretary (Home), GNCT of Delhi for information and necessary action under intimation to this Court. At this stage, on request of Ms. Sadhna Singh Advocate for the Delhi Commission for Women one copy be also given to her to be placed before the Chairman, Delhi Commission for Women for necessary action.