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) 3/21/2013 1

Scheme of Presentation
Prologue : Basic Concepts

What Constitutes Rape?

Constituents of Custodial Rape

Development of Rape Laws: Prior to 1983

Sluggish Evolution of Rape laws

Reckless attitude of the Judiciary towards Rape Cases

Conclusion

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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

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What Constitutes Rape?

S. 375, IPC, 1860.

A man is said to commit rape when he has sexual intercourse with a woman Against her will Without her consent With consent obtained by putting her in fear of death or hurt With her consent when he knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. With her consent when at the time of giving such consent, by reason of unsoundness of mind, or intoxication or due to administration of any stupefying substance, she is unable to understand the nature and consequences of that to which she consents. With or without her consent when she is under 16 years of age.
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Constituents OF Custodial Rape

Custodial Rape

Police Officer (a)

Public Servant (b)

Management / Staff of Jail / Remand Home / Other Place of Custody Established under Law (c)

Management / Staff of Hospital (d)

Limits Police St. Premises St. House Whether / not within Police St. His / Subordinates Custody

Takes Advantage His Position Rape His / Subordinates Custody

Takes Advantage His Position Rape Inmate

Takes Advantage His Position 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

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hue and cry

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

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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)

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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/996 3/ ncrb.nic.in/crime2004/cii2004/CHAP13.pdf mynation.net/rapelaw.htm - 102k http://infochangeindia.org/2004030714 1/Women/Analysis/Flaw-in-the-lawCustodial-rape-inadequate-evidenceand-acquittal.html http://www.hindu.com/2005/04/26/stori es/2005042600931003.htm www.cili.in/article/viewFile/1744/1249 http://ncrb.nic.in/ - national crime records bureau official website http://shelleytherepublican.com/2007/1 2/26/muslim-rape-wave-in-sweden-itcan-happen-here-folks.aspx/commentpage-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
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