The Supreme Court, in a recent judgement, reiterated that all persons in a group involved in cases of gang rape must be held liable, even if all of them did not commit the act of rape. In a judgement dated May 1, Justices Sanjay Karol and KV Viswanathan observed that even if the rape is committed by one person, “all the accused will be guilty irrespective of the fact that she had been raped by one or more of them and it is not necessary for the prosecution to adduce evidence of a completed act of rape by each one of the accused”.
The court was hearing an appeal filed by a man named Raju alias Umakant, challenging a Madhya Pradesh High Court decision that upheld the conviction and sentence of him in a sexual assault case. Raju and another man Jalandhar Kol were initially convicted by a lower court for offences including abduction, rape, wrongful confinement, and offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
The case dates back to 2004 when a missing person report was filed in Madhya Pradesh. The complainant alleged that his daughter went to a wedding procession and did not return. She was later found at the house of a woman who was said to be in a relationship with Raju.
The survivor later accused Raju and Jalandhar of abducting and raping her.
Both the men were convicted by a lower court and the conviction was upheld by the High Court.
Raju raised several arguments, including inconsistencies in the survivor’s statements, disputes about her age, and the extent of his involvement in the rape, while challenging the order. His major challenge was against the application of Section 376(2)(g) of the Indian Penal Code (IPC), which deals with gang rape.
He argued that the evidence in the case did not clearly establish that he himself committed the act of rape. He pointed to inconsistencies between the initial statements and the first information report (FIR) where the survivor primarily accused Jalandhar of the rape.
While in the FIR, Raju’s role was described as ‘helping’ Jalandhar in the offence, her later testimony included more explicit accusations of rape against Raju. Stating that the initial reports did not specifically name him as a perpetrator of rape, Raju used this to argue that his role was ambiguous or less significant.
However, the apex court explicitly stated the legal position under IPC Section 376(2)(g), clarifying that in gang rape cases, the prosecution does not have to prove that each accused individually raped the victim. It is sufficient to show that the rape was committed by one of the accused in furtherance of the “common intention” of all the accused involved.
“It is very clear that in a case of gang rape under Section 376(2)(g), an act by one is enough to render all in the gang for punishment as long as they have acted in furtherance of the common intention. Further, common intention is implicit in the charge of Section 376(2)(g) itself and all that is needed is evidence to show the existence of common intention,” the court observed.
The court also commented on how the survivor was subjected to the ‘two-finger test’ after her complaint.
The two-finger test is an unscientific and regressive procedure that involves the insertion of two fingers into a person’s vagina to gauge the laxity of vaginal muscles, thereby determining her ‘virginity’. It is based on the patriarchal assumption that a woman who is sexually active is less likely to have been sexually assaulted.
There are several court judgements that denounce the practice. Most notably, it was in 2013 that the Supreme Court ruled that the test is unscientific, violates the survivor’s rights, and has no bearing on determining whether sexual assault occurred, ordering that such practices must not be repeated.
The court had observed in multiple occasions that the test “is based on the incorrect assumption that a sexually active woman cannot be raped. Nothing could be further from the truth — a woman’s sexual history is wholly immaterial while adjudicating whether the accused raped her. Further, the probative value of a woman’s testimony does not depend upon her sexual history. It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped, merely for the reason that she is sexually active.”
The court had also deemed that any person who conducts the two-finger test while examining a person alleged to have been subjected to a sexual assault shall be guilty of misconduct.
The Supreme Court reiterated this order, noting that the present case was in 2004. “We are only re-emphasising this aspect so that this obnoxious, inhuman, and degrading practice is not repeated on victims of sexual assault.”
