Author: Nistari Sinha pursuing BA LLB (Hons) from Amity law school, Amity University Raipur.
Rape is a stigma which subsists in the society from a very long time.
Rape is one of the utmost inhuman crimes against the women. As per NCRB one rape case is reported every 15 minutes in India. Rape can be categories according to the reference of the situation in which it take place. One of them is Custodial Rape. When a person is in custody or to say when a person is in under the care of supervision and control of another person or institution is called custodian. Generally, Custodian gets the authority to have control over an individual. Custodial Rape is committed by custodian such as police officer, public servant or jail or hospital employee.
The Mathura rape casewas the first custodial rape incident of India which was reported on 26 March 1972. In this case, Mathura was allegedly raped by two policemen of Desaiganj Police Station, Gadchiroli, in Maharashtra district. On 1 June 1974 Sessions Court held the defendant not guilty. Appeal regarding same was filed in Nagpur bench of Bombay High Court. The court sentenced the accused to one and five years of imprisonment respectively. The case went to Supreme Court as Appeal by Special Leave from the judgement. On September 1979 Supreme Court Justice Jaswant Singh, Justice Kailasam and Justice Koshal gave their judgement and reversed High Court ruling and acquitted the accused policemen. Adding that there were no visible marks of injury on Mathura’s body which suggests that there was no struggle and hence no rape. This Judgement by Supreme Court gave birth to the public outcry and protest. However, the court said that there was no locus standi in Mathura’s favour for her Case.
Rameeza Bee’s Case (1978), In Hyderabad Rameeza Bee and her husband Ahmed Husain were arrested by the police for loitering at late night. Her husband went home to bring money to pay the fine. Meanwhile, Rameeza Bee was raped by three policemen. On his return when he protested to this he was cruelly beaten to death by the policemen. Rameeza Bee complained about the incident of custodial rape which sparked violent protests and riots in the state of Andhra Pradesh. Four police officers were suspended. Commission of Inquiry was instituted, Justice Mukhtadar Commission – to inquire into the rape of Rameeza Bee and the death of Ahmed Hussain. The Commission found the policemen guilty of rape and murder, and recommended that they should be prosecuted. However, the police were acquitted by the session’s court on the ground that evidence recorded before a Commission of Inquiry was inadmissible.
The nation-wide campaign and protest against rape, led to the need for amending the previous laws. Indian rape law through The Criminal Law Amendment Act 1983 was amended.
It is challenging to prosecute and punish a rape accused; the challenge becomes greater when it comes to custodial rape. Registering FIR is difficult against the police is not an easy task. The victims might have to face lots of problem in filing an FIR. Such as,
1) Police or other forces may refuse to accept the complaint of the victim.
2) Police exercise of recording informal complaints in the form of Community Social Register (CSR) rather than FIR.
3) The political pressure to suppress crime statistics, including the statistics about custodial rape.
A victim or survivor of custodial rape is not a mere victim of assault and aggression. Her Rights to Dignity is also violated which cannot be confined to rape alone. It further extends to her efforts to lead a normal life after it. Because the woman targeted in custodial rape belongs to the section of a society which are periodically subjected to police cruelty, Due to the patriarchal attitudes pre-set in ancestral and social values and norms consider rape as a loss of chastity.
To expect that the survivor will overcome her vulnerabilities and will also be in a position to challenge the power and authority is a headstrong denial of the existing inequalities in our society. Unless until there is intervention into the mediation between rule of law and civil society meaningful changes is not possible. And the vulnerabilities of raped survivor will remain unrecognized. Some women assume male perceptions of sexual harassment and blame themselves for having brought on the provocation. They not only doubt the validity of their own involvements but begin to consider that they must be 'indecent', ‘cheap’, or 'abnormal' deserving the violence that comes their way. If acquittal rests exclusively on the woman’s denial or her absence in judicial procedure in the lower courts displays a complete is disregard for survivals socio-economic vulnerability.
Laws and Punishment
Indian Penal Code,1860.Section 376- Section 376(2)(a), Section 376(2)(b), Section 376(2)(c), Section 376(2)(d) provides law and punishment for the Custodial Rape. The minimum punishment for custodial rape is 10 years which extend to life imprisonment and shall also be liable to fine.
The Indian Evidence Act, 1872. Section 114A - This section was brought by the Criminal Law Amendment Act 1983 which raised presumption of sexual intercourse as to absence of consent in cases of custodial rape. These laws are exclusively for woman.
Till date there are no laws for the protection of man from rape. Following the track of the Supreme Court in a public interest litigation (PIL) initiated by the non-governmental organisation to expand the definition of sexual intercourse in Section 375 of the Indian Penal Code, the Law Commission in its 172th report recommended widening the scope of rape law for making it gender neutral.
Law remains but the numerous of victims (including minor) continues to increase destroying the soul of the women. Enough is enough; there should be no mercy to the custodial rapist. The custodian gets rights to control not to rape. There is need for amending not just the law but also the mind-set of the people. Many Jurists and public men have fortified capital punishment for the criminals who commit custodial rape as it is an offence worse than murder. Committing any offence by the state administrator or any other superior authority is unpleasant and unacceptable
The police officer, public servant or jail or hospital employee has to protect and save the society from the difficulties that the people face in the society. Police officer duty is to protect people from acts of rape, armed robbers, habitual criminals, terrorists, and murderers and make it a safe place to live in. The duty of Hospital employee is to cure the people’s injury or harm, they shouldn’t be the one to harm them by committing custodial rape in fact no one should.
National Crime Records Bureau Tuka Ram And Anr vs State Of Maharashtra 1979 AIR 185, 1979 SCR (1) 810  Order dated 12th/13th December, 1978 of the Bombay High Court (Nagpur Bench) in Criminal Appeal No. 193/74.  Article 21- Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law https://indiankanoon.org/doc/1279834/ https://indiankanoon.org/doc/1586025/