Rape is not only a crime against the person of a woman(victim), it is a crime against the entire society. It destroys the entire psychology of a woman & pushes her into a deep emotional crisis. So rape is the most heinous crime & it violates the victim’s basic human right & fundamental right namely, the Right to life contained in article 21 of the constitution.
The word rape is derived from the Latin term ‘rapio’, which means to seize. thus means a forcible seizure.it is ‘the ravishment of a woman without consent, by force, fear or fraud’, or ‘the carnal knowledge of a woman by force against her will’.
Section 375 of the Indian penal code 1860 states that: “A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:
- Against her will.
- Without her consent.
- With consent obtained under fear of death or hurt
- With consent given under misconception of fact that the man is her husband but the man knows that he is not her husband.
- Consent is given because of unsoundness of mind, intoxication, or under influence of any stupefying or unwholesome substance.
With a woman under 18 years of age with or without consent.
Let us look into the meaning of custody, in Omkar Prasad Verma v. State of Madhya Pradesh The Supreme Court held that “The expression “custody” implies guardianship. Custody must be a lawful custody. The same may arise within the provisions of the statute or actual custody conferred because of an order of a court of law or otherwise”. 2 In this case, the court relied on the definition given by P. Ramanatha Aiyar‟s Law Lexicon. Which define “custody” to mean “Care keeping; charge (as parent or guardian having custody of children and minors); imprisonment; judicial or penal safekeeping (as custody of prisoner); defense from an enemy; preservation (as a fleet stationed for the custody of the narrow seas).”
The Verma Committee Report has defined “custody” which “includes any form of physical, mental or psychological restraint to inhibit the exercise of free will by the person in custody. When a woman is under the guard or confinement or care or charge
of a man, & that man commits intercourse with her with or without her consent, is called ‘custodial rape’.
Priya Sharan Maharaj alias Yadavendra Parashar v. State of Maharashtra, The Maharashtra High Court, defining custodial rape, has held that “Whenever a person having position or influence in the society take liberty with such girls and commits sexual intercourse, such act of the accused could be termed as custodial rape”
During the era of national emergency 1970s to 1980s landmark custodial rape cases were reported throughout India the three cases of custodial rape which led to the masses gathering of women across the country were, Mathura Rape Case [Tukaram and others vs. State of Maharashtra, AIR 1979 SC 185], Rameeza Bee in Andhra Pradesh (1978) and Maya Tyagi in Uttar Pradesh [ Sheo Kumar Gupta and Others vs. State of U.P. ].
Rameeza bee case
The facts of the case were that Rameeza Bee and her husband were returning from a late-night visit to the cinema where they were arrested by the police for loitering. They were brought to the police station where the police demanded a fine. The husband went home to get the money. During his absence, Rameeza Bee was raped by three policemen. When the husband returned and protests, he was beaten to death. There was a wide protest by the people throughout the city which resulted in the appointment of the Muktadhar Commission to enquire into the incident.11 The commission found the accused policemen guilty of rape, murder, and assault
Mathura Rape case
Mathura a young tribal girl whose parents died when she was a child & living with her brother, both of them used to work as labor, Mathura developed a relationship with the cousin (Ashok) of her employer Ashok and Mathura decided to get married and fled away. Mathura’s brother complained to the police that her sister was kidnapped by her employer and his nephew. All of them were brought to the police station for questioning. they were asked to leave the police station, the head constable Tukaram asked Mathura to stay back, where she was subjected to rape by the constable Ganpat. Tukaram attempted to rape her but failed because he was too inebriated. The Session judge acquitted the two policemen. Later, the Bombay High Court reversed the judgment and convicted the accused for rape. But the Supreme Court reversed the High Court judgment, thereby acquitted both the accused. This led to major widespread protests throughout the country which became of great significance in the Amendment of 1983.
Maya Tyagi case.
Maya Tyagi, her husband Ishwar Tyagi & two friends had gone to attend a wedding where their car broke down on the way, the men walked to a nearby town to get the tire repaired. After they left, a police officer (SI) in the civil dress came in and molested Maya Tyagi. When Maya Tyagi’s husband saw this he slapped the police official. This police officer then returned with policemen. Then they shot dead Ishwar Tyagi and his two friends who accompanied Maya Tyagi, Maya Tyagi who was six months pregnant was dragged out of the car, beaten, stripped. When she did not move despite the cruel beatings, the cops shoveled a lathi into her vagina. She was paraded naked to the police station where she was raped.
The Mathura rape case led to an amendment being made to the Indian penal code, Criminal Procedure Code, and the Indian Evidence Act.
- Expanded of the term ‘custody’
The law changed in 1983 was give importance to the concept of custodial rape & penalized its section 376(2) was added today custodial rape includes :
- A police officer who commits rape within the limits or premises of the police station to which he is appointed.
- Whoever is a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him.
- A person being on the management or the staff of a jail, remand home, or other place of custody takes advantage of his position to commit rape.
- Whoever is on the management or the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital.
- Increase in number of years of punishment
The new legal reform in 1983 amendment enhanced punishment, the prescribed punishment of custodial rape increased as compared to rape by an ordinary person, a minimum 10 years of rigorous imprisonment which may extend to life & also fine.
- To solve the problem of non-registration of FIR at the discretion of the police station & the failure to assist a rape victim, the Criminal Law Amendment Act, 2013 recognized this as an offense under the Indian Penal Code, 1860. Section 166-A was inserted in IPC which punished the public servant with rigorous imprisonment of a minimum of 6 months which may extend up to 2 years and shall also be liable for fine in case they disobeyed the direction of law regulating conducting of investigation or if they fail to register an FIR concerning a rape crime.
- burden of proof
Criminal law ordinarily puts the burden of proof on the prosecution to prove the committal of crime by the accused. The accused is presumed innocent until proven guilty. However, this posed a bigger problem in cases of custodial rape due to reasons mentioned above like tampering and destruction of evidence. Therefore, an exception to the rule of presumption was provided in the provision of the Evidence Act. The Criminal Law (Amendment) Act, 1983 introduced Section 114A in the Evidence Act, 1872 which states that if the sexual intercourse is proved and the victim states that it has happened without her consent, then the Court shall presume the absence of such consent. The onus then lies upon the perpetrator to prove that the sexual intercourse happened with the consent of the woman.
Sexual violence has been a persistent and chronic social problem in India. The abuse of power by public authorities has been a major concern. In custodial rape, the perpetrators are mostly people in authority. They are powerful and influence the criminal justice system. They know that they will be able to get away with it, which leads to an increase in custodial rape & Mathura rape was one turning point leading to reforms in rape laws in India.
- S.R.Myneni, Law Of Crimes ( Indian Penal Code, 1860), (Asia Law House, Hyderabad, 2009)
- C. LALHRIATPUII, Custodial Rape(2014)( Unpublished LL.M dissertation, National Law University Delhi).
- Sahar , What Is Custodial Rape & Why We Need To Be Discussing It, (visited on 23 Dec 2021) ,https://feminisminindia.com/2019/04/16/custodial-rape-india/.
- Rakshhit, Custodial Rape ( visited on 23 Dec 2021 ), https://www.legalserviceindia.com/legal/article-6337-custodial-rapes.html
- SREYASI BHATTACHARYA, CUSTODIAL RAPE IN INDIA( visited on 23 Dec 2021), https://www.lawcian.com/post/custodial-rape-in-india.
Author: Gururaj udagi,
Karnataka State Law University, 3rd year Student