SEMINAR PRESENTATION: VI SEMESTER: PENAL LAWS- II

The Concept of Custodial rape with special

reference to the Criminal (Amendment) Act, 1983.

PRESENTED BY: SHRUTI SHRESTHA ROLL NO.: 217 ( GROUP- I)

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Scheme of Presentation

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Prologue: Basic Concepts

• Custodial Rape – Most Heinous Offence + “Aggravated” form of offence

• Assault by the “Supposed Guardians”

• Custody + Rape (S. 375)

• S. 376 B: intercourse by public servant with woman in his custody• S. 376 C: intercourse by superintendent of jail, remand home etc.• S. 376 D: intercourse by any member of the management or staff of

a hospital with any woman in that hospital

other sexual offences committed in custody

What Constitutes Rape?

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Constituents OF “Custodial Rape”

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Development of Rape LAW: Law prior to 1983

Tukaram & another v. State of Maharashtra: AIR1979SC185

• Facts: Gama lodged report – Mathura kidnapped by Nushi – Mathura was found & retained at the station – after completion of formalities – they were about to leave the station – Mathura was retained in the station – App. 1 raped her – App. 2 outraged her modesty for his intoxication

• Sessions court: She was a “Shocking Liar” + “Concocted Story”

– Used to having Sexual intercourse + lack of corroborative evidence – No Rape committed + Acquitted the Appellants

• High court: Difference between passive submission & consent

– Convicted – App.1 – u/s 354 + App. 2 u/s 376

• Supreme court: Acquitted the Appellants

– No Injury on her body = No Resistance on her part

– Her cries & alarm – Concoction – Had Ganpat caught her hand & pulled her inside – She would have resisted – this did not happen = Story is concocted

“hue and cry”

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Sluggish evolution of the Rape Laws!!!

• Maya tyagi case (New Herald, Aug. 20, 1980, p.3):

• 8 months after Mathura Case – Few enraged Policemen - stripped nude Maya + paraded her through Baghpat streets + at the end of ordeal Raped her

• Landmark Judgment – death penalty (6) & life imprisonment (4)

Criminal Law Amendment Act, 1983

Criminal Law Amendment Act, 1983

• New Sections were ushered– IPC,1860

• S.376 A[Intercourse by a man with his wife during separation]• S. 376B [Intercourse by public servant with woman in custody]

• S.376C [ Intercourse by superintendent of Jail, remand home, etc]

• S.376D [Intercourse by any member of the management or staff of a hospital with any woman in that hospital]

• S.228A [ Disclosure of identity of the victim of certain offences, etc]

– CrPC, 1973• S. 327(2) [ In camera Proceedings of Rape cases]

– INDIAN EVIDENCE ACT, 1872• S.114A [Presumption as to absence of consent in certain

prosecutions for rape]

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Reckless attitude of the judiciary to wards rape cases

• BHAI SINGH V. State of Rajasthan ( 1984) Cri LJ 786• Harijan girl of 7 years Raped by boy (18 years).• Held: Sentenced for 5 years • Why?- Boy was 18 years only

• Prem chand v. State of Haryana (AIR 1989 SC 937)

• Suman Rani (Victim) – indulged in sexual intercourse with “R” – Police caught and kept them in custody – in the night – she was raped

• Held: Police Officials – liable for Rape X sub – minimum punishment given

• Why? – She was a woman of easy virtue

• P. rathinam v. state of Gujarat (1993 2 SCC 631)• Police Officer – Brutally Raped a Tribal Woman – failed to get justice – knocked the doors of

Supreme Court – considerable delay

• Court – directed winding up all enquiries within 3 months + 50,000 (Interim Compensation)

• Chandra prakash keval chand jain (AIR 1999 SC 658)

• Supreme Court has expressed concern

• Decency and morality in public life can be maintained if court deals strictly with those who violate the court norms

• State of M.P v. BALA ( 2005) 8 SCC 1• Court cannot award a sentence of less than 10 years rigorous

imprisonment “ without assigning adequate and special reason”

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Conclusion

• Amendment – Mere Eye Wash – Blemish in Nature– investigation conducted by policemen often of the same

police station

• STATUS POST AMENDMENT– Lack of convictions on the ground of lack of evidence poses

serious questions about the working of the law– No overall shift of burden-of-proof has been brought

• Prosecution first needs to establish the factum of sexual intercourse

• Gamut of lodging FIR, Medical examination, recording of statements by police, depositions in court have been gone through

• Delays in lodging FIRs, Delays in medical examinations, inconsistencies in FIRs, Contradictions – Prime Factors in Accuser's Defense.

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Sources: • Internet links:

• http://www.upiasia.com/Human_Rights/2008/09/08/police_-indias_obstacle_to_law_and_order/9963/

• ncrb.nic.in/crime2004/cii-2004/CHAP13.pdf

• mynation.net/rapelaw.htm - 102k • http://infochangeindia.org/2004030714

1/Women/Analysis/Flaw-in-the-law-Custodial-rape-inadequate-evidence-and-acquittal.html

• http://www.hindu.com/2005/04/26/stories/2005042600931003.htm

• www.cili.in/article/viewFile/1744/1249 • http://ncrb.nic.in/ - national crime

records bureau official website

• http://shelleytherepublican.com/2007/12/26/muslim-rape-wave-in-sweden-it-can-happen-here-folks.aspx/comment-page-3

• Books:

• Ratanlal & Dhirajlal: indian penal code, 30th Ed., Lexis Nexis, 2008

• Diwan Paras: dowry, dowry deaths, bride burning, rape and related offences, 2nd Ed., Universal Law Publishing House, 2006

• Manapatra S.: Crime Against Women, Rajat Publishing, New Delhi

• Saxena S.: Crimes Against Women, Deep & Deep, New Delhi, 2007

• Choudhry R.N.: Crime Against Women, Orient Publisher, Delhi, 2003

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Thank You