Execution of Harassment Free Investigation
and Trial Proceedings in Rape Cases

Rape has become a common crime in India since the last few years. India is becoming a high crime rate country, where rape is the 4th common crime in the country against women.1 United States of America and Brazil are the top two countries where the maximum numbers of rapes are committed; with India at 3rdplace.2 Rape is considered one of the most heinous crimes all over the world. On an average 88 cases of rape were registered in India, daily in the 2019.3 The torment on the victim however does not end, in fact, the long and elaborated proceedings that follow add onto it. This thus begs the question to delve deep into said proceedings and manners by which it can be tackled.

What Constitutes Rape?

According to Section 375 of Indian Penal Code, 1860, it constituted a rape when a man has sexual intercourse with a woman-

  • Against her will and/or without her consent
  • Has used fear of hurting someone she cares about or given death threats to get her consent
  • When the consent is obtained with the woman believing that the man is her husband and the man is aware that he is not the husband
  • If the consent is given in the state of intoxication, unsoundness of mind, or when the woman is unable to comprehend the consequences and nature of consent given
  • Under the age of 18 years (minor) irrespective of whether consent was there or not. Where wife is minor and has not consented to the sexual intercourse.4
  • The woman is not able to communicate her consent.

Types of Rape

Rapes are categorized in various forms and each have a different punishment as per their nature.

Type of Rape Explanation Punishment
Aggravated Rape5 In aggravated rape the criminal and the victim have a special position.
  • When a person has control or authority over the victim due to their legal status. This can include a police officer, staff of jail, public servant, armed forces personnel etc.
  • By a person who is a relative, guardian or staff of hospital
  • When violent circumstances are involved in rape
  • Nature of the victim is special.
Imprisonment which shall not be less than 5 years and can extend to 10 years also with fine.
Crime of Murder and Rape6 When due to rape the woman ends up in vegetative state, or is severely injured during the rape which causes her death is considered a crime of murder and rape. Imprisonment of not less than 20 years and may extend to life.
Gang Rape7 When the crime of rape is carried out by more than one person simultaneously then it is considered a gang rape. Imprisonment of not less than 20 years and may extent to life. There are different punishments for gang rape on different age group of woman.8
When the offender is a repeater9 When a person who has been convicted once, again commits rape is a repeat offender. Imprisonment for life.

Harassment Free Investigation and Trial Proceedings in Rape Cases

Rape victims’ sufferings unfortunately continue during the proceedings to get justice. A harassment free investigation and trial proceeding is the need of the hour. The established process provides that for recording a statement of the victim, the officer will come at a time which is favorable or is decided by victim. Such officer can be a woman police officer or any other officer.10 The parents of the rape victim will be present at the time of recording the statement by a woman police officer. If the parents are not present, then a guardian will be present. The statement given in front of the magistrate in his chamber is considered final, who will record the statement as per law.11

Where the victim is mentally disabled, an Analyzer Educator Social Interpretation will be present at the time of recording the statement to help in understanding the signs. The main goal is to protect the privacy of the victim. Hence the victim will not have to narrate the incident again in the trial court.

Other rights of Rape Victims

To ensure that the sufferings of the victim are not prolonged, certain measures are in place. These include:

  1. Free medical treatment at private hospitals12
    All the government or private hospitals are required to give rape victims free medical treatment. It is an offence if any private or government hospital charges fees for treating a rape victim.13
  2. Zero FIR14
    This was introduced after Nirbhaya gang rape case. An individual can file a FIR in any police station, even if the police station does not have the jurisdiction for the same, and the said police station will then transfer the FIR to the concerned police station. This allows for quick registration of FIR without the victim having to run from pillar to post. The concept of zero FIR has been recognized by many High Courts in India.15
  3. Ban on two finger test.
    Two finger test is a medical test performed by the medical practitioner on a rape victim whereby they would insert 2 fingers inside the vagina of the victim. It is aggressive and invasive test that has no scientific basis and neither proves nor disproves allegations of rape. It instead re-victimizes and re-traumatizes women who may have been sexually assaulted, and is an affront to their dignity.16 The test was thus banned.
  4. Compensation.
    Rape victims are entitled to compensation under the law. The quantum is as decided by the courts.17
  5. Speedy trial ensuring dignity and protection.
    The trials are in-camera proceedings18 where no questions are asked that may degrade the character of the victim.


In conclusion, thorough action and immediate attention are required to address the growing rape cases in India. The law provides a legal framework that covers different forms of rape and enforces severe punishments. However the emphasis needs to go beyond punishment. Continuous training for law enforcement and medical personnel, in addition to the use of technology for faster trials, can enhance the process and make it more victim-centric and efficient. Another facet to be considered can be the manner of introducing change in the society where no future victims are present.

Article is authored by Shreya Patel, B.A.LL.B (Hons).

1 Womenlawindia, India, available at: https://womenlawsindia.com/legal-awareness/crimes-against-women/(last visited on January 23, 2024).
2 Krishna Kant Choudhary and Kalpana Thakur, “Rights of a Rape Victim”, 3 International Journal of Law Management and Humanities 1002 (2020).
3 Dipu Rai, “No country for Women: India reported88 rape cases every day in 2019”, India Today, October 1, 2020, available at: https://www.indiatoday.in/diu/story/no-country-for-women-india-reported-88-rape-cases-every-day-in-2019-1727078-2020-09-30 (last visited on January 22,2024).
4 Independent Thought vs. Union of India (UOI) and Ors., MANU/SC/1298/2017.
5 The Indian Penal Code, 1860 (Act 45 of 1860), ss.C, 376.
6 The Indian Penal Code, 1860 (Act 45 of 1860), ss.A, 376.
7 The Indian Penal Code, 1860 (Act 45 of 1860), ss.D, 376.
8 The Indian Penal Code, 1860 (Act 45 of 1860), ss.DA,DB, 376.
9 The Indian Penal Code, 1860 (Act 45 of 1860), ss.E, 376.
10 The Code of Criminal Procedure, 1973 (Act 2 of 1974), ss.1, 154.
11 The Code of Criminal Procedure, 1973 (Act 2 of 1974), ss.5-A, 164.
12 The Code of Criminal Procedure, 1973 (Act 2 of 1974), ss.C, 375.
13 The Indian Penal Code, 1860 (Act 45 of 1860), ss.B, 166.
14 Advisory on no discrimination in compulsory registration of FIRs Regarding, Ministry of Home Affairs, available at:https://www.mha.gov.in/sites/default/files/AdvisoryCompulsoryRegistrationFIRs_141015_3.pdf (last visited on January 20, 2024).
15 Kirti Vashisht vs. State and Ors., MANU/DE/4160/2019, Lalita Kumari vs. Govt. of U.P. and Ors., MANU/SC/1166/2013
16 The State of Jharkhand vs. Shailendra Kumar Rai, MANU/SC/1411/2022.
17 Serina Mondal vs. State of West Bengal and Ors., MANU/WB/0622/2018.
18 The Code of Criminal Procedure, 1973 (Act 2 of 1974), ss.2, 327.
  • Toll Free No : 1-800-103-3550

  • +91-120-4014521

  • academy@manupatra.com

Copyright © 2024 Manupatra. All Rights Reserved.