Abstract

In rape sentencing, Indian courts exercises its judicial discretion based on two considerations. The foremost consideration by courts for exercising judicial discretion in rape sentencing is based on certain factors such as facts and circumstances of the case, victim's consent, marital status, acquaintance of accused etc. In rape cases, the Courts consider victim's consent as one of the mitigating factors in sentence reduction that has been witnessed in Tukaram v. State of Maharashtra, the Supreme Court reduced the sentence stating that the victim is sexually active and she had given her passive consent since there are no injuries on her body. In general, the courts decide whether the rape victim had given her consent or not based on the medical report except in certain rapes such as custodial rape, gang rape, rape on pregnant women etc., the courts presume there is absence of consent, if the victim states in her testimony that she did not give her consent. But the World Health Organisation (WHO) Report – 2019 states that only 30% of rape cases, victims have visible injuries upon their bodies. Hence, the courts shall consider other factors while deciding the question of victim's consent. The other consideration is the prevailing theory of punishment in the country. In India, the Supreme Court did not consistently apply any particular punishment theory in convicting rape offenders. However, usually Indian Courts apply reformative theory of punishment in rape cases i.e., the courts examine whether there is any possibility of accused being reformed, if the answer is affirmative, then the courts reduce the sentence of accused. Based on this theory, young age, social background of the accused may be considered as mitigating factors. Such mitigating factors seems unjustifiable and would give lenience to the accused and other persons to commit sexual offences. The courts must adopt any one of the punishment theories and also address various factors to be considered in mitigating and aggravating the sentence. This study aims to deeply investigate the existing inequalities prevailing in the Indian Criminal Justice System and thus, emphasis the need for adopting uniform sentencing guidelines in crimes against women and children.

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