Changing Dynamics of Violence Against Women: Need For Moral Education

Abstract:

Prof. Mir in this paper has made a modest attempt to explain the concept of Law and Justice in the light of existing scenario and has maintained that there is a big void between ‘law in books’  and ‘Law in action’ and invariably justice is hardly accessible to the poor and weaker sections of the society. On one hand our prisons are over-crowded by the under trials who if given a fair and speedy trials, majority of them, (more than 70.0 percent) can be found ‘not-guilty’ and may see the windows of freedom, but on the other hand a good number of heinous crimes are not reported, because victims, especially from the poor and weaker sections of the society want to avoid stigma of the society and are also scared to face the police or even to face ordeal of the long judicial process (Tarik-par- tarik). In the long process of justice, the  witnesses  usually  turn  hostile and victims get frustrated, which finally may lead to the acquittal of the accused and thereby frustrate the basic purpose of law i.e. justice.

The crime rate is shooting up, the judicial process continues for decades, the bac-log of the courts piles up and the conviction rate goes down and the fear of law vanishes away. It is rightly, said justice delayed is justice denied.

Prof. Mir while giving reference to a number of decides cases, attempts to high light ground reality regarding criminal justice processes and raises a very important issue as  to  why  youth  commit crimes against women.

Last but not the least, Prof. Mir high lights the main features of the Hawal Acid Case judgement

and maintains this landmark judgment has successfully conveyed message to the youth who are

swayed away in wrong direction and advocates to imbibe human and cultural values right from the

lap of the mother, as the family has a vital role to shape the character of the children in the positive

direction. The severe sentence may not curb the increasing crimes against women, but value based

education with concepts of morality, brotherhood respect for women at the initial stage i.e. family,

neighborhood and primary schools can keep our youth away from deviance.

The Perspective:

It is said law is blind, thereby meaning  equality  before  laws  and  equal  protection of laws, but the situation on the ground is different and the common man’s perception about ‘justice’ is that it is beyond their reach and invariably without eye.

The Indian Criminal Justice System which is adversary in nature is based on a strong presumption that every one is presumed to be innocent unless proved otherwise, though there are some exceptions to this Rule. The guilt of the accused is to be proved beyond reasonable doubt and the benefit of doubt if any shall go to the accused.

The Judiciary in recent decades has delivered several landmark judgments on important issues related to crimes against women, police investigation, judicial process, rights of the victims, rights of the accused persons, rights of the prisoners, and prison management. However, the ground reality is some what different.

There is a big void between the ‘Laws-in-books’  and ‘Law-in-action‘ rather justice at the gross root level. The ‘de-jure laws’ have not been translated into ‘de-facto situation’ for various reasons such as illiteracy, social reasons, prejudices, cultural ethos, disparity, poverty, lack of access and opportunity to information and resources, difficult access to judiciary and what not.

Violence Against Women:

Violence against women is not a new phenomenon, but over last few decades such crimes have increased in manifold directions and have reached to the alarming level. The question as to why the people commit such crimes, varies along with the pattern and modus operandi of the commission of crimes, from city to city, country to country and even in the same country from time to time depending upon a number of variable factors, which among others may include lack of parental care, wrong upbringing, wrong education, personality disorder, psychological strain, wrong association, loss of moral values, migration of men-folk to the main towns, concentration of work force in the metropolitan cities, abuse of authority, abuse of power and many other factors.

Women in most of the cases fall prey either within her own home or at the hands of her own relatives, some times even close relatives or colleagues or acquaintances or even at the hands of a person to whom she trusts most.

It is also a matter of fact that she may fall in the vicious net because of her own conduct/behavior/carelessness or greed or some allurement or undue-influence or any type of mischief or threat. Violence against a woman may be committed even by a person with whom her custody is entrusted.

III. Nature of Violence:

Violence against women may be demonstrated in so many ways, the most barbaric and inhuman type of violence includes sexual over-tunes, sexual harassment at the work-place, sexual advances, sexual abuse which may finally lead to rape and murder, cruelty, dowry deaths, violation of privacy, violation of modesty, acid attacks, kidnapping and abduction and many more vices.

Violation of modesty, acid attacks, sexual assaults, kidnapping, abduction, rape and murder incidents have taken ugly turn which has shaken the entire humanity, where in the victim and her family is made to suffer on many counts and the victim herself is forced to live a unbearable and painful life. The recent acid attacks in Kashmir are glaring example and speaks in volumes about the damage caused to the entire society in general and the family in particular.

Magnitude of Violence:

Incidents of violence against women, children, Scheduled Castes and Scheduled Tribes as well as cyber cases rose in 2022 in comparison to the year before it, the annual report ‘Crime in India’ (2022) report published on Sunday showed rise in the crimes against women. In the recent past there have been many more cases of violence and other crimes against women, which have gained attention of the public and media played very vital role to reach to the consciousness of the law making agencies and the judiciary.

The Delhi gang rape case of a 23 year old paramedical student Joyti Singh Pandey (Nirbya, 2013) is a tip of the ice-berg regarding the atrocities being committed against women. Further, a total of 202 acid attacks were reported in India in 2022. West Bengal topped the list in the 48 acid attacks followed by U.P. with 23 acid attacks. According to NCRB (Feb. 21, 2021) Jammu & Kashmir saw over 10.0 percent increase in crimes against women during the period.

The Judicial Trend:

The judicial trend in India has been accused oriented but over last few decades judiciary has given due recognition to rights of the victims and many safeguards are in place to meet the ends of justice.  Justice  is an important factor in the entire judicial process.

The people are not concerned with ‘what the law is’ or ‘what it ought to be’ or the technical issues of the judicial process’  but they are concerned with what we call as the ultimate objective of the Criminal Justice System i.e. Justice. Law and Justice no doubt are interrelated, but both are distinct concepts and each has its own sphere of operation.

The concept of justice is even older than that of law.25 Justice is the legitimate end of law, it must therefore, necessarily be omnipresent in every process of law, as people want justice rather than laws. According to Salmond,  justice comes first and law comes second. Roscoe Pound 26 pointed out that one can not expect either peace or security in a State or Society, where justice is denied to the people and they suffer from a sense of insecurity.

In India, the cases of Priyadarshi Mattoo Rape and Murder (1998), Delhi Tandoori Murder (1999), Jaiska Lal Murder (2000), Phoolan Devi Murder (2001), Natasha Singh Murder(2002), M.A.M. College Rape, English Scarlett Keeling Rape (2008), Noida Gang Rape (2009), Ashwani Bhatnagar Murder (1999), Shivam Pandey, Gautum Nagar, Murder case (2022) Arush Talwar Murder (2008), Noida Rape and Murder (2013) and many more cases, where the courts have tried their best to conducted the trials on fast track basis.

Kashmir Crime Scenario:

Kashmir is ‘Peerivar’, ‘Resihvar’ and ‘Paradise on the earth’ where respect for humanity and human values as taught by Peers, Reshis, Munnis, Saints and ancestors was given highest priority. The crime rate was at a very low ebb in Jammu and Kashmir especially in the valley, but over last few decades crime rate in Jammu and Kashmir has shown upward trend and heinous crimes particularly crimes against women including dowry deaths surfaced at alarming rate. 9 Jammu & Kashmir as per the NCRB (Feb. 21, 2021) recorded 31,675.0 crimes under IPC and Special Laws in the year 2021 with 0.5 percent share to the All India Crime figures.

The crime rate in the Jammu & Kashmir in the year 2021 was at  235.7 with crime density 14.25 per 100 sq.kms., investigating rate at 67.9 percent, charge sheeting rate at 79.9 percent and conviction rate at 77.3 percent.  Over last few decades the murders, dowry deaths, rapes, acid attacks and other forms of violence against women by their near and dear ones in a barbaric manner has shaken the entire humanity.

Some of the following cases of Kashmir valley are an eye-opener regarding the changing dynamics of crime in Jammu and Kashmir, particularly in the valley of Kashmir. Saribal acid attack case(1982),Kununpora and poshpora mass rape case (Feb.23,1991), Ratnipora Pulwama acid attack case (June 2002), Sabina sex scandal case (2006), Mahajan Murder (2007), Shopian rape and murder case (May 29,2009), 17 year old girl crushed by two teenagers at Bhaghat Barzulla (May 2010), acid attack on 24 year old school teacher at Parraypora (Jan.03,2013), Nowshera, Law student acid attack case (2014), Rahman Najar’s Case (Sept.3, 2016)  Abroo Shafi Bhat Murder case, Nowgam (Mar.10,2018), Kral Check, Shopian acid attack (Oct. 2021), Tota’s Murder, Illahi Bagh case (2022), Budgam Murder Case (14 March 2023)

The Ministry of Home Affairs (MHA), recently disclosed that in Jammu & Kashmir conviction rate in crime against women cases is just 3.4 percent, while the court pendency percentage is 95.8 percent. Ajay Kumar Mishra, Jr. Home Minister reported to the parliament.

“The conviction rate of J&K is much below in comparison with the   national conviction rate, which is 29.8 per cent in crime against women cases and among all Union Territories, the conviction rate is 31.7 per cent which is also higher than J&K,”

In 2016, the conviction rate in Jammu and Kashmir was 4.1 percent, which went up to 5.1 per-cent in 2017, 5.2 per cent in 2018, 3.4 in 2019, and 3.4 in 2020. The court pendency percentage of crime against women cases in Jammu and Kashmir in 2020 was 95.8 per cent.

VII. Hawal Acid Case:

The recent judgment delivered on 4th March 2024 by the Learned Principal Sessions Judge Mr. Jawad Ahmad in UT of J & K  through Police Station Nowhatta, Srinagar V. Sajad  Ahmad Sheikh where in the main accused has been held guilty for commission of the offence punishable under Ss.326-A/34 of the Indian Penal Code.

The accused committed inhumane, heinous and barbaric act of acid attack on Feb.01, 2022 at Hawal while the victim, 26 years old, innocent young and beautiful girl belonging to a economically middle class family, was returning from her workplace. The barbaric act shocked people of the Jammu and Kashmir. A journalist  Shakir Ashraf  in his paper ‘Acidic Lives’ rightly observed:

“Gruesome acid attacks take away victims’ identity, pushes them to merely survive in shadows and bar them from interacting even with their own family and denial of justice is haunting them more than the obscure lives.”

The police swung into action and arrested the main accused within 24 hours and constituted a special Investigation Team (SIT) headed by Raja Zuhaib (SP North). The investigation was conducted on fast track basis and the case was filed on 8th Mar. 2022.

The Court found the accused guilty and delivered the conviction verdict on March 04, 2024, just after 02 years, 01 month and 03 days from the date of the acid attack and within 02 years from the date of institution of the case. The Court immediately after delivering the judgment of being guilty started sentence hearing under S. 235(2) of the Cr. Procedure Code and provided an opportunity to both the convict and the victim to participate in the sentence hearing.

VIII.  An Over-View of the Sentence Order:

An over-view of the ‘sentence order’ dated March 08, 2024 reveals that the learned Public Prosecutor Ajaz Hussain for the UT of J & K, Mir Naveed Gul (Advocate) learned Penal Lawyer assigned to victim by the DLSA and learned Defence Counsel Advocate Amir Masoodi submitted their version before the Hon’ble Sessions Court regarding the quantum and nature of the sentence.

It is heartening to put it on record that the learned advocates on both the sides were fully loaded with the arguments duly supported by the criminological theories, penological thoughts, victimology assertions and relevant case law on the subject.

The learned public prosecutor while praying for the maximum possible punishment flagged the plight of the victim in terms of the physical, social, mental, psychological and financial damage inflicted by the convict on the victim and her family, which she has to bear for the entire life.

The victim has undergone 23 surgeries, she has lost eye sight and one eye completely damaged and she is forced to live rest of the life in very miserable condition. The learned public prosecutor, while advocating for life imprisonment and fine, supported his arguments with the important case law, including Ram Chandra (1996), Joseph Rodrigues (2006) and Suresh (2012).

The learned penal lawyer also emphasized for the maximum possible punishment to the convict for the heinous crime, who has rendered the victim and her family helpless and the victim’s rest of her life is unbearable in every respect.

The learned penal lawyer apprised the court that the victim has incurred huge expenditure on her treatment and the expenditure is recurring one. The victim’s mother had to sell her house to meet the expenditure on treatment. He rightly pointed out that the barbaric attack has shattered all her hopes and dreams of the victim who was contributing to the meager income of the family.

The learned Counsel for the victim, while acknowledging the victim’s plight and extending sympathy with her, pleaded for lenient punishment for the convict. He advocated the reformative theory of punishment and pleaded that the convict has no criminal history and is young boy of 25 years age, the only breadwinner in the family.

He made a modest attempt to flag the mitigating factors and tried his best to convince the court, that it can’t be driven by emotions nor the court is expected to send the message to the society. The learned Counsel relied on Giausuddin (1977) and P.K. Mishra (2023) and prayed minimum sentence be awarded to the convict.

Nature and Quantum of the Sentence:

The learned Principal Judge, Sessions Court, Srinagar, while delivering the sentence order observed;

“I have considered the arguments on both the side on the quantum of sentence and the victim and

convict who were on board were also given an opportunity to present their version to the court on

the issue. He analyzed with the scientific temper and eagle’s eye, the cases like Mahesh (1987),

Joseph Rodrigues (2006), Balram (2005), Raviji (1996), P. K. Mishra (1977), Suresh (2012),

Sitaram (2012) and many other cases.”

The learned Principal Sessions Judge referred Lord Denning, a great jurist who observed that the basic purpose of the punishment while appearing before the Royal Commission spelled out the basic purpose of the punishment.

The learned Judge reached to the conclusion that the convict does not deserve any leniency and awarded thelife imprisonment and a fine of Rs. 40 lacs for commission of the offence  and as when the fine from the convict recovered, same shall be paid to the victim in terms of the relevant provisions of law.

VII. Main Features of the Judgment:

The judgment in my opinion is one of the best which has been delivered in a time bound manner and has been in position meet the parameters of justice in almost every respect. Main features of the Judgment are as under;

The Police swung into action, with out losing any time and collected the material evidence in a professional manner and carried out the investigation on the fast-track basis.

The Police completed investigation within the shortest possible time and submitted the case to the public prosecutor.

The learned Public Prosecutor analyzed the case in the light of the evidence available and filed the case to the Court of law.

The District Legal Authority, Srinagar provided a Penal lawyer to the victim so that she can also participate in the judicial process.

The Learned Principal Sessions Judge provided ample opportunity to the Learned Public Prosecutor,  Learned Penal Advocate and    Defence Counsel to present their version.

During the trial adjournments were avoided.

The case is the best example of proper coordination, between the police and judiciary and within the Judiciary, the Public Prosecutor, Penal lawyer and victim’s counsel have assisted the court in a proper perspective to arrive at the right conclusion.

The learned Principal Sessions  Judge  delivered   the  judgment of  conviction  within  a  span  of  02 years,  followed by  sentence order within few days.

It is a well established principle that crime does not pay to anyone. Crime on one hand causes huge damage to the victim, victim’s family and the   society at large, but on the other hand the life of the offender along with life of the family members of the offender is also ruined in every respect with unending consequences. In order to curb the increasing crime trend, especially against women, it is imperative that the parents and elders in the family spare some time and impart value education to their children.

By Prof. Mehraj Uddin Mir

Prof. Mehraj Uddin Mir, Chair Professor [MLNC], K. R. Mangalam University, Guru gram, Sohna Road, Haryana. The author is a student of criminal law and superannuated as Professor of Law from   the University of Kashmir and Central University of Kashmir in  the  years 2011 & 2016 respectively. The author also served the CUK as its Vice-Chancellor for almost 8 years.