This article is written by Sneha Mahawar from Ramaiah Institute of Legal Studies. The article discusses the concept of Gang rape and Custodial rape.
Introduction of Rape
The word ‘Rape’ has derived from the Latin terminology ‘rapere’ which means to seize or abduct. The definition of rape and punishments of committing such crime is mentioned in the Indian Penal Code, 1860 from Section 375 – 376D ie., (375, 376A, 376B, 376C, 376D). It is an act of forcing sexual intercourse upon another person without their consent or against their will. Rape is a heinous crime which is punishable in the eyes of law.
Section 376(2)(g) uses the term “Gang Rape”. Gang rape is when rape is committed by more than one person on a woman against her will and consent. It is a kind of rape involving more than one perpetrator. In a gang rape, it is not necessary for each individual in the gang or group to commit the crime of rape that is to have a high degree of culpability.
Any activity performed by any person who is a part of that group or gang with a common intention to commit the offence of rape is penalised in the eyes of law and is considered as rape. Even when some persons do not indulge or commit any sexual assault but help others to commit such a crime are still regarded as rapists and cannot escape by claiming that they did not commit the offence of rape. The punishment for such an offence is described in Section 376D of the Indian Penal Code, 1860.
Can a Woman Be Charged For Gang Rape?
Priya Patel v. The State of M.P
The question ‘Can a woman be charged for gang rape?’ was answered in this case. Here, it was stated that a woman cannot commit rape as per the definition of rape mentioned in Section 375 of the Indian Penal Code, 1860 but if a woman facilitates the act of committing rape then she could be prosecuted and convicted for the offence of gang rape. This rule was based on the principle of common intention contained in Section 34 of the Indian Penal Code, 1860.
Section 376(2)(g) contains the punishment for gang rape and states that when a woman is raped by a group of individuals or a gang then they shall be punishable with rigorous imprisonment of at least 10 years which may even extend to life imprisonment for the offenders along with fine or both. It should be further noted that the fine shall be reasonable and just to meet with all the medical expenses and rehabilitation for the victim of such an offence.
Landmark Judgements for Gang Rape Cases
Capital punishment awarded
The State of Maharashtra v. Vijay Mohan Jadhav and others(Shakti Mills Rape Case)
In this case, a photojournalist who was a 22-year-old female was brutally gang-raped by a group consisting of 5 male members which included a minor. She was raped while she was taking photographs of a worn-out mill in Mumbai called Shakti Mills. The Court pronounced the judgement by awarding death penalty to three accused of rape who were adults and repeat offenders. Further the minor of the gang were convicted under the Juvenile Justice Board for a sentence of 3 years.
This case was termed as the ‘rarest of rare’ as for the first time capital punishment was awarded for committing of such heinous offence like rape.
State vs. Ram Singh And Another (Nirbhaya Rape Case)
In this case, the deceased victim, a 23-year-old female was brutally raped and tortured in a moving bus by six men including a minor. The victim was tortured to such an extent that she was not only raped but even forced to have anal sex, the accused inserted iron rod inside her genitals and her intestines were pulled out of her body and her genitals were damaged. After raping her, she along with her male friend who was deeply wounded and unconscious while trying to save her were thrown out of the moving bus in a winter night on the roads of Delhi, naked.
The Court awarded death penalty to the five adults accused of gang rape. Out of them, one committed suicide in jail and rest were hanged to death. Further, the accused who was a minor was sent to a reform facility for three years.
Life imprisonment awarded
Mohan Lal & Anr v. the State of Punjab
In this case, a student was raped by her teachers which included the Director of the State as well. The case was initially moved to the trial court and punishment of 10 years of imprisonment along with a fine of Rs.2000/- and Rs.3000/- was imposed on the accused respectively and in case of default fine further adding to rigorous imprisonment of one and a half year. But, an appeal was filed against the judgement of P&H High Court.
The case was taken to the Supreme Court of India which overruled the judgement of the Trial Court and increased the punishment from 10 years of imprisonment to life imprisonment considering the relationship of the parties.
In this case, an 11-year-old girl was raped by 17 men on different occasions. She had a hearing impairment. She lived with her parents and was raped by a gardener, lift operator, plumber, security guard.
A special Court under the Protection of Children from Sexual Offences (Pocso) Act convicted 15 out of 17 accused i.e.,
- 5 accused were awarded life imprisonment.
- 1 accused was awarded 7 years of rigorous imprisonment.
- 9 accused were awarded 5 years of rigorous imprisonment.
Out of the other two accused one died of illness and the other who was a gardener was acquitted for the evidence.
Indian Penal Code, 1860 contains Section 376(2)(a), (b) and, (c) that create a new category of offence which is termed as ‘custodial rape’. In the general sense, the term custody means the legal right to take care of something or somebody, especially children. It is the temporary possession or care of somebody else’s property. But in the legal sense it is the state of being imprisoned or detained, usually pending in trial. It is different from child custody and hence both should not be misunderstood. Such a person who is given custody is known as custodian. The custodian has absolute control over the person on whom he has the custody.
The control includes mobility, liberty, freedom, food, water, outside relations with the world of the individual. The offence of committing rape under such situations and circumstances is considered as serious crime and violation of his duty to take care along with the bodily integrity of the individual who was raped.
Rise of custodial rape and examples
The issue of custodial rape came into light in the late 1970s and early 1980s when a continuous series of incidents of rape of women in police custody came to picture. This issue was mobilised by the women’s movement.
Custodial rape generally takes place in the detention by the state via police or army or other security forces which are appointed to safeguard the lives of individuals but instead outrage the modesty of a woman. The concept of custodial rape not only includes security forces but also hospitals, mental institutions, shelter homes and juvenile homes where people are sent for rejuvenating their health but instead are brutally raped.
The punishment prescribed for custodial rape is at least 10 years of rigorous imprisonment which may extend up to life imprisonment along with a fine.
Landmark Judgements for Custodial Rape Cases
Smt. Rameeza Bee v. D Armugam (Rameeza Bee’s Case)
In this case, Rameeza Bee was a 26-year-old working female who was returning home along with her husband, Ahmed Husain who was a rickshaw puller. They were on their way to their house but they were arrested by the police officers for loitering late in the night. They were asked to pay a fine. Rameeza was kept in custody and was raped by the three police officers while her husband was sent home to bring money to pay the fine. After his return, he protested against the assault committed by the policemen upon his wife but he was beaten mercilessly to death by the policemen.
Later, Rameeza Bee complained about the incident which led to violent protests and riots and four policemen were even suspended. Due to the results of such activities, an inquiry commission was set up to inquire about the rape of Rameeza Bee and the death of Ahmed Husain. During the period of commission’s proceedings, the police defended the murder and rape by putting questions on the character of the victim and tried proving that Rameeza Bee was married several times earlier and her marriage to Ahmed Husain was not a lawful marriage and she was wrongfully cohabiting with him.
However, the commission stated that the police officers guilty of rape as well as murder and they shall be prosecuted. Subsequently, they were acquitted on the grounds stating that evidence recorded by the inquiry commission was inadmissible in the session’s Court.
Tuka Ram And Anr vs State Of Maharashtra (Mathura Case)
In this case, Mathura was a young orphan girl who lived with her brother Gama. She worked as a labourer at Nushi’s home. While she was employed she formed sexual relations with a boy named Ashok who was the son of Nushi’s sister. Ashok and Mathura decided to get married and fled away.
Mathura’s brother filed a report stating that Mathura was kidnapped and all the related parties which included Ashok, Nushi and other relatives were brought to the police station. After recording their statements everyone walked out of the station and it was past 10:30 pm. Ganpat who was one of the police constables asked Mathura to wait inside the police station. He then closed the gates and turned off the lights inside the police station and took her inside the washroom and raped her despite her resisting. Then came in the second constable whose name was Tukaram who also tried to rape her but failed as he was highly intoxicated.
Later, when she met her family and friends she narrated the entire incident to them and was medically examined. The medical examinations stated that her hymen revealed old ruptures but there was no bodily injury.
Later, the High Court had found the accused guilty and sentenced him but then the Supreme Court reversed the decision. The Court acquitted the police constables Ganpat and Tukaram as no bodily injuries were found which showed that Mathura did not resist and gave her consent to the officials.
Maya Tyagi, Meerut v. Ito, Baraut (Maya Tyagi Case)
In this case, the victim was travelling in a car via Bulandshahr district of Uttar Pradesh with her husband Ishwar Tyagi and two of her husband’s friends when their car broke down near Baghpat police station. Then Ishwar Tyagi along with his two friends left to get the tyre repaired. After they left, a police officer in plainclothes came in and molested Maya Tyagi. When Maya Tyagi’s husband saw this he slapped the police official.
This police officer then returned with 10 policemen. Then they shot dead Ishwar Tyagi and his two friends who accompanied Maya Tyagi. Maya Tyagi the victim of this case was then dragged out of the car, stripped naked and paraded through the marketplace. When she resisted they attacked her by inserting the police stick which is the lathi into her. Later, she was taken to the police station and was mercilessly tortured and false accusations were charged on her which stated that she was a dacoit’s mistress and was covering up for their killings.
During the judicial inquiry, the policemen tried to justify their actions by calling her a woman of ‘easy virtue’ as her marriage to Ishwar Tyagi was her second marriage so she deserved such violence.
On the allegations put on Maya Tyagi, her husband and two of his friends the Court held that all those allegations were false as they were not dacoits and were falsely framed by the police officials. The Judicial Committee found all the torturous incidents told by Maya Tyagi upon her by the police officials as true. However, there was no penetration and though the police officials were acquitted.
Hence, rape is a heinous crime for which reforms are needed so that the offenders are strictly aware of the power of law and not cross their boundaries. Certain reforms like enhancement of punishments for rapists and strict punishment for police officials who at the time of duty do not perform their task and file FIR in time or did not handle evidence appropriately. Such reforms have to be bought into the picture so that the crime rate of rape can be reduced.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: