Tag: Indian penal code

Understanding Criminal Conspiracy

To prove criminal conspiracy, the prosecution provide evidence to prove that:

1. The accused agreed to the act or caused it to act;

2. The Act was unlawful or done in illegal ways as defined under the IPC;

3. Whether any overt act was done by any one of the accused in pursuance of the same.

Under Sec. 120A of the IPC, the offense of criminal conspiracy is an exception to the criminal law when intent alone does not constitute a crime. It is the intention to commit a crime and to join hands with individuals with the same intention which is taken into consideration. An agreement has to be made to carry the object of intent. It would not suffice for a crime of conspiracy when some of the accused merely entertained a will, whatever it may be, reduced the crime.

An allegation of conspiracy may prejudice the prosecutors because it compels them into a joint trial and the court may consider the entire mass of evidence against each accused. It is stated that a criminal conspiracy is a partnership in a crime, and that each conspiracy has a joint or mutual agency for the prosecution of a shared arrangement. Thus, if two or more persons enter into a conspiracy, any act done by either of them according to the agreement is in contemplation of the law. This would be an act of each of them and they are therefore jointly responsible. This means that everything written or done by any conspirator in a general-purpose execution or further conspiracy is said to be known, done or written by them. And this joint responsibility is not only carried out by any conspirator pursuing the original agreement, but also to end the incident and move beyond it for the original purpose. A conspirator is not responsible, however, for acts committed by a co-conspirator after the plot is concluded. The joining of a plot by a new member does not create a new conspiracy nor does it change the status of other conspirators, and the mere fact that conspiracies carry out different actions individually or in groups to a common end. It would not divide a conspiracy into several different conspiracies.

A criminal conspiracy is a meeting in the minds of two or more individuals to commit an unlawful act that is non-qualified legally, but it is not possible to prove it by direct evidence. Therefore, the conspiracy and its purpose can be understood from the surrounding circumstances and the conduct of the accused. Furthermore, it is also relevant to note that the plot continues until it is executed or saved or frustrated by the choice of necessity. It is not necessary that all conspirators agree to the general objective at the same time. They can join with other conspirators at any time before the intended purpose is consumed, and all are equally responsible. Everyone may not know which part each conspirator has to play or the fact that when a conspirator joined the conspiracy and left. A person can be involved in a conspiracy by word or deed. However, criminal responsibility for a plot requires more than a passive approach to an existing conspiracy. An overworker with knowledge of the conspiracy is guilty. And one who accepts the purpose of a conspiracy and goes with the other conspirators, in fact while others keep the conspiracy in effect, is guilty, though he does not want to take any active part in the crime.

Any person who is found to be the guilty of committing criminal conspiracy is governed by Section 120B which prescribes punishments for the same to the person. It sentences the conspired party of an offence punishable with death, life imprisonment or rigorous imprisonment for a term  of  two  years  or  more if no specific mention is  made  in  that regard. This specific Code  for  the  punishment  of  such  a conspiracy punishes  in  the  same  manner  as  if  the person had abetted  the particular offence. The Code also prescribes punishment to the party  of  a  criminal conspiracy  even if not under a  criminal  conspiracy  to  commit  an offence   punishable   as   mentioned above  with imprisonment  of  not more than six months, or often just with fine. Mostly with both.

Marital Rape:Culture or Consent?

Patriarchy, often perceived as a “culture” by the Indian society, strives to be protected at all costs, even if that means to strip off the “vulnerable”, of their basic human rights. All concepts that threaten this so-called culture, are categorised as “western concepts”, and are further refused to be acknowledged. Living in denial and refusing to acknowledge the problems, does not mean that they don’t prevail in the Indian Society. In fact, this means that a significant chunk of the society is not ready for the particular problem, but, that does not in any way, give them the right to disregard other people’s safety and security, just because their’s is intact.
One such controversial concept is ‘Marital rape’, often perceived as an oxymoron. Although, ‘rape’ has been clearly defined by most of the criminal codes of almost every country recognised by the United Nations, yet the understanding is rather subjective varying on the culture and relationship of the accused and the victim.  As Estelle B. Freedman points out in Redefining Rape,”At its core, rape a legal term that encompasses a malleable and culturally determined perception of the act…The meaning of rape is thus fluid”. One such factor is ‘marriage’, which supposedly rules out the possibility of forceful sexual conduct upon a wife, since a wedlock provides  immunity to the husband, sociologically as well as on legal grounds in 10 nations of the world.
Well, one of the most difficult challenge faced by people opposing marital rape, is the lack of acknowledgment of this sin. The surprising fact is that this is probably the only crime , where the victim does not recognise her violation of the rights, because control of a woman’s body is foundational to patriarchy. As British jurist, Lord Mathew Hale, states that,”The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.” This orthodox thinking is deep rooted in our society and is a shame to our so-called judicial progress, because if we see the section 375 of the Indian Penal Code,1872, although it defines rape, yet there is an exception in the statute which states, that, ’Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.’

Arguments generally used to justify the non existence of this crime in the IPC, are that there are other sections like domestic violence and cruelty that protect the wives from the oppression and dominance.“there are other provisions that safeguards the rights of a wife, like domestic violence which covers cruelty, so why do we need another law? So greedy, these ‘feminists’ have become!”. This shows us the biggest problem in not recognising marital rape as a form of rape ,that is, the society is ready to accept the husband as an offender of  domestic violence, since the ‘anger issues’ are just unstoppable and ‘he is a man’, but are not ready to accuse the husband of rape of his own wife.Such beliefs are imbedded in notions such as the idea that a woman’s sexuality is a commodity that can be owned by her father or husband, the belief that what happens between husband and wife in the bedroom is a private matter, that a man is entitled to sexual relations with his wife, and that a wife should consensually engage in sex with her husband, thus making rape “unnecessary.” 

The ways in which marital rape is condoned varies cross-culturally. In India, Supreme court ruled in February 2015, that marital rape is not a crime.A government minister then told the parliament, that it could not be criminalised in India, since “marriages are sacrosanct”.(BBC News,2015). Like, in United States of America, although it is a criminal offence, yet a significant amount of attitudinal surveys show that Americans regard the rape of a wife far less than a similar assault by an acquaintance or a stranger. “Marital rape is a western concept, it is not possible in the Indian Society”, as stated by Maneka Gandhi, minister of women and child development, Ironical? It’s a crying shame, that people still have to be convinced, that there is ‘no difference’ between rape and marital rape. A wedlock, does not take away the bodily rights of a woman, she is still an individual and her rights must be protected. This mindset cannot be changed solely by judicial activism, but by educating men and women, and making them sensitive towards each others sentiments.

One of the ignored reason of the exclusion of this crime, is the anthropological aspect of research. As Gabriella Torres points out in her book, ’Marital Rape: Consent, Marriage, and Social Change in Global Context’, that first and foremost, this issue is not been given the level of public importance that it deserves. The  arguments for keeping the exemption have included, first,  keeping the marital relationship private,  second,  protecting husbands from vindictive wives, third, because it is nearly impossible to prove, and fourthly because a charge of rape would discourage reconciliation between husband and wife.

The reason for the less public attention given by the people to this inhuman and heinous act is that, the society is so blinded with culture and customs, that now the customs are not according to the behaviour of the people, but the behaviour is according to the culture and customs. This is where anthropologists come into power, since the society has nicely, adapted the crime to the custom, it’s important to understand what the culture or customary practice originally stated.There can be two possible scenarios, that is, one, culture does not state to violate any right, then society’s mindset can be changed with the right information regarding their culture  and second possible scenario is, if the culture succumbs to the violent and dominant ideology and even after reading the accounts of the victim, the dominance of the culture has a possibility, then it is high time we make a choice between ‘Culture or Consent’.