About the Custodial rape
Under section 376 of IPC, whoever commits rape shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life. Section 375 of IPC defines rape and Section 376 deals with the punishment for rape. Section 376C of IPC defines “sexual intercourse by a person in authority.”
In 1983, the concept of custodial rape was given importance, and the term ‘custody’ was widened. Custodial rapes are committed by a public servant while performing his duty. Here the duty means “to take care of the person”. In the case of Omkar Prasad Verma v. State of Madhya Pradesh, the Supreme Court defined “custody” as guardianship. The custody must be lawful. Custodial rape should have been in the superintendent jail, remand home, or other places of custody established by law. Custodial rape also includes the rape committed by the management or staff of a hospital, mental health care institutions, rehabilitation centers, juvenile homes, etc.
Cases of custodial rape
During the 1970s and 1980s, three cases led to a campaign against custodial rape which led to the amendment of rape laws in 1983. But the amendment of 1983 was not sufficient. CrPC, IPC, and IEA Act were amended in 2013 and made substantial changes in sexual crime.
The following three cases have changed the scenario of custodial rapes:
Sheo Kumar v. State of U.P. And Ors, in this case, the lady was arrested on fake charges. Maya Tyagi, who was six months pregnant, was dragged out of the car, beaten, and stripped. One of the cops from the group shoveled a lathi into her vagina. She was raped by cops in the Police station. Her spouse was shot by cops. He died because of the shot. The case was supported by politicians. This case has been protested by women’s organizations as well as politicians across the country. The six policemen were sentenced to death and four policemen were sentenced to life imprisonment.
Smt. Rameeza Bee v. D Armugam, in this case, lady Rameeza Bee, who was a 26-year-old woman, was arrested along with her husband. They were returning from the cinema. The police arrested them for loitering. To pay the fine her husband went home to get money. In the absence of her husband, three policemen raped her. Her husband had protested after returning from home. He was beaten to death. The Court found police officers guilty of rape-murder and assault.
Tuka Ram And Anr v. State of Maharashtra,
Mathura, who was a 16-year-old girl, was doing housework in Nunshi’s house. During work, she came in contact with Nunshi’s brother and she eloped with him. Her brother filed a case against Nunshi and her brother. The police found and arrested them. Mathura was in the police station, where she was raped by two policemen. Mathura has filed a case against policemen. The session court found insufficient evidence against policemen. But in the High Court decision, it was found that policemen were guilty.
The Challenges in Custodial Rape
Custodial rape typically takes place in police stations, jails and other places and the evidence is under the control of public servants.
It is difficult to register FIR against police because:
- Police or other forces refuse to accept the complaint of the victim;
- There is political pressure to suppress crime statics, including statics about custodial rape.
- Police informal practices complaints are recorded in the form of Community Social Register (CSR) rather than FIR. So they can easily remove records of the offense.
Section 197 CrPC prescribes that the public servant cannot be prosecuted for any act while discharging the official duty.
Category of Custodial Rape as an Offence
In the case, Sheela Devi v. State of Haryana and Anr, the women were raped and then murdered by policemen in the police station.
Then the government has introduced an amendment in the law under rape and it also included the category of custodial rape. The punishment for custodial rape is not less than ten years and may also extend to imprisonment for life and shall also be liable to fine.
Custodial rape was increasing and, the process of prosecution is challenging. The women’s movement demanded the law related to custodial rape. And this led to series of reforms:
- Expansion of the term ‘custody’
The law has given broader meaning to custodial rape since 1983. Before 1983, it was rape by police officials in the police station. Now it includes:
- Rape by police officers in the police station and the victim in his custody;
- Rape by a public servant on a woman in the public servant’s custody;
- Rape by Army man in an area where the forces are deployed;
- Rape by management/staff in a jail, remand home, women’s home and other places where women are in custody.
- Rape by hospital staff where a woman is in custody.
- Burden of proof
In Criminal Law, the burden of proof lies on the victim. They have to prove the guilt of the accused. The accused is innocent until he is not proven guilty. Cases of custodial rape were inspected under Section 114A of the Indian Evidence Act. As per the provision, if prosecution manages to prove the act of sexual intercourse without her consent, then the court will presume the absence of the consent.
- Failure to perform the duty is a Punishable offence
After the 2013 amendment, if the government official has not registered a report of rape against the victim then it is recognized as he assisted the offender that is a punishable offence. If the police officer does not register the FIR then the person can file a case against him and he will be punished for the act with imprisonment for life and shall also be liable to fine.
Many changes have to be done to provide justice and to stop custodial rapes. Law should be improved so the woman can easily register complaints. The punishment of rape is not less than ten years but in reality, in many cases, it has been given three to four years.
Many custodial rapes have not been reported because rapists are in authority. The victim experiences fear of rapists and humiliation. It is hard to file a case against a public servant. If the case has been filed then the evidence would remain within the public servants, so the evidence can be easily destroyed or either changed. The number of cases reported is less because there is government pressure to show fewer crime rate statistics. According to a report of the National Crimes Record Bureau Report in 2016, 26 custodial rape cases have been registered in India. Government should also provide facilities for counseling for victims because they are suffering from traumatic situations.
This article is written by Prachi Yadav, a 2nd Year student from Mody University of Science and Technology, Laxmangarh, Rajasthan.
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