Section 376(2) of Indian Penal Code

Introduction

Custodial rape is rape perpetrated by a person employed by the state in a supervisory or custodial position, such as a police officer, public servant or jail or hospital employee. It includes the rape of children in institutional care such as orphanages.

The term custodial rape is sometimes used broadly to include rape by anyone in a position of authority such as an employer, money-lender, contractor or landlord, but under Indian law it refers only to government employees. Victims of custodial rape are frequently minorities, people who are poor, or low-status for example because of their caste. Researchers say custodial rape is part of a broader pattern of custodial abuse, which can also include torture and murder.

Laws Applicable

A ‘rape’ charge under the Section 375 Indian Penal Code has two parts:

• non-consensual penetration of any orifice (vagina, anus, mouth, urethra) in a woman by a man.

                                             OR

• non-consensual touching of any orifice with the mouth. This is not restricted to having sex. Forcing a woman to do this to herself, or with someone else, is also rape.

Consent has been clearly defined as a clear, voluntary communication that the woman agrees to the specific sex act, leaving no room for debate. It also makes it clear that absence of physical injuries is immaterial for deciding consent.

The rape law under Indian Penal Code had gone through a lot of amendments. In 1983 amendment was made and Section 376(2) i.e Custodial Rape.

Rape committed on a woman in their or their subordinate’s custody by

1. Police officer
   • Within the limits of the police station to which he is appointed.
   • In the premises of any station house whether or not situated in the police station to, which he is appointed; or
   • On a woman in his custody or in the custody of a police officer subordinate to him;
2. Public Servant
3. Management or the staff of a jail, remand home or other place of custody or a women’s or children’s institution
4. Management or on the staff of a hospital.

Case Laws

Title of the case:  Tuka Ram And ANR Vs. State of  Maharashtra on 15 September,1978.

Petitioner: Tuka Ram And ANR Vs

Respondent: State of Maharashtra

Date of Judgement: 15/09/1978

Introduction:

On 26^th March, 1972 mathura rape case became the episode of custodial rape in India, where Mathura, a young harijan girl was badly raped by two policemen on the compound of Desaiganj Police Station in Chandrapur district, of Maharashtra as it led to amendments in Rape law via The Criminal Law Amendment of 1983.

Facts of the Case:

                             A young tribal girl named Mathura lived with her brother Gama she worked as the labourer at the Nushi’s house for the employment. During the period of employment she developed the sexual relations with the son of Nushi’s sister, Ashok. They decided to get married, her brother filed a complaint to the police ensuring that Mathura had been kidnapped by Nushi, her husband laxman and Ashok. On 26^th march, 1972 the statements of Ashok And Mathura were recorded at about 10:30 pm and the head constable Baburao asked all the persons to leave with a direction to Gama to bring a copy of the entry regarding the birth date of Mathura. The appellant’s also asked Mathura to stay at the police station only. Thereafter closing the doors and turning off the lights inside, Ganpat, the appellant no. 1 took Mathura to the washroom and raped her. After the Ganpat was done, the appellant no. 2 Tukaram, tried to rape her but failed due to highly intoxication but touched her private parts.

After the incident Mathura was examined by the doctor and found no injury on her body. The examiner did not found the symptoms of semen even on the public hair. The semen however found on the girls clothes. After examining her doctors has also estimated the age of Mathura as between 14 to 16 years.

Judgement by the Session Court:

                 The session court held that both of the accused are not liable for the offence of rape because the intercourse between the girl and accused was a “consensual sexual intercourse” as the girl was habituated to the sexual intercourse and also she was scared of Ashok and Nushi that is why she had not made any sound. The district jugde therefore acquitted both of the appellants.

Judgement by the High Court:

                The Bombay High Court has reversed the order of the session court and held that the sexual intercourse. It is proved by the evidence that since, both the accused were strange to Mathura, how she can have sexual intercourse with them to fulfill the sexual needs of her.

Judgement by the Supreme Court:

                The appellant contented for the special leave and supreme court again converted the decision of the High Court and acquitted the accused. It was agreed with the decision of the session judge and held that this was a case of consensual sexual intercourse. On this spot the Supreme Court more added that as “no marks of injury” were found on Mathura’s body there was “no battle” on her part and since she did not “raise any alarm” for help she “consented to sex”.

Conclusion:

              Violence against women is a problem around the world. It is a life- threatening problem for individual women and a serious problem for societies. Women are victims of incest, rape and domestic violence that often lead to trauma, physical handicap or death. Moreover, rape is still being used as a weapon of war, a strategy used to subjugate and terrify entire communities.

             The major loophole is that the criminal law amendment shall provide for the harsher punishment to the accused of this offence. Judiciary should take a corrective measure for minor or major as soon as possible for the same offences.

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