Legal Provisions Regarding “Custodial Rape” in India – Section 376 (2) of IPC

They can have undue influence over the staff. Besides it, new Section also defines clearly “gang rape” and rape on pregnant woman, which are also included in custodial rape. Thus, according to Section 376 (2), a “Custodial Rape” means and includes,—

1. Police Officer:

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A police officer committing rape in his local area to which he is appointed, or in any [ police station whether or not situated in such local area, on a woman in his custody or in the custody of a police officer subordinate to him.

2. Public Servant:

A public servant taking advantage of his official position and committed rape on ; a woman in his custody as such public servant or in the custody of a public servant sub-ordinate to him.

3. Officers of a jail, remand home, women’s hostel, children’s hostel, etc.:

Any person being on the management or on the staff of a jail, remand home or other place of custody or of a woman’s or children’s institution, taking advantage of his official position and committing rape on any inmate of the institution.

4. Management of hospital:

Any person concerned with management or being on the staff of a hospital, committing rape on a woman who is receiving treatment in the hospital.

5. Pregnant woman:

If a pregnant woman is raped by any person is also deemed as custodial rape.

6. Girl below the age of 12 years:

If a girl below the age of 12 years is raped, such rape is also deemed as custodial rape.

7. Gang Rape:

If a woman is raped by more than two men is called as Gang Rape, and this type of rape is also deemed as Custodial Rape.

Punishment under Sec. 376(2):

The punishments imposed under Section 376.(2) are severe and graver than the punishment imposed under Section 376(1). It is because of the incorporation of amendment to that Section by Criminal Law (Amendment) Act, 1983. *

D. Consent:

If a woman, who is major, and not under descriptions from first to sixth of Section 375, intentionally commits sex with a person it is not rape. If she is a minor, it becomes rape irrespective of her consent.

Biram Soren vs. State of West Bengal (1992 CrLJ 1666 (Cal.)

Brief Facts:

Biram Soren-the accused did intercourse with the prosecutrix, a major. She knew him. She did not reveal his name and the incidence to her parents for one week. After a week, bleeding started from her private parts. Her parents took her to doctor. The doctor found that she was raped.

Then it was reported to Police. The Police lodged the F.I.R. after ten days without any satisfactory explanation. The accused contended that she consented for sex and both of them enjoyed it.

In the Court, the prosecutrix did not give any testimony against the accused. The Court acquitted the accused treating that the prosecutrix was a consenting party.

E. State of Orissa vs. Gangadhar Behuria (1992 CrLJ 3814 Ori)

Brief Facts:

Gangadhar Behuria-the accused took the prosecutrix to a holy place under a pretext to offer prayers to a deity. They stayed in a room in that dharmasala. In the night, he intercoursed her. In the morning, she gave a police complaint that he did rape.

He argued that while intercourse she did not give any alarm, and voluntarily took part in intercourse and she was an accomplice. The Court did not admit his argument, and treated it as a custodial rape and imposed punishment accordingly.

F. Rabinarayana Das vs. State (1992 CrLJ 269 Ori)

In this case, the accused raped a blind helpless young girl. He contended that she gave the consent and she was an accomplice. The Court did not admit his contention and imposed punishment.

G. Devo vs. State of Himachal Pradesh (1994 CrLJ 2971 HP)

The accused committed inter-course with a handicapped young girl without her consent the trial Court convicted him under Section 376(1). On appeal, the High Court confirmed it.

H. William’s case (1850) 4 Cox 220):

Brief Facts:

The accused was a doctor. A fifteen years young girl was taken to him for the treatment. The doctor, in the pretext of examination and medical check-up, did the intercourse. The girl, under bona fide belief that it was necessary for treatment, kept quiet, while intercourse was done.

In the Court, the accused made the plea that she gave her consent and she was an accomplice. The Court did not agree with his argument, and imposed imprisonment upon the accused.

I. Prostitute:

Generally, the prostitutes go with any person to any where for money. If any dispute regarding the payment arises, they quarrel with the debauchers. If payment is not made, in certain occasions, the prostitutes complain to the police against them to harass them.

Banti vs. State of Madhya Pradesh (1992 CrLJ 715 MP)

In this case, a woman-prostitute filed a case alleging that she was gang raped. On medical examination, no evidence of gang rape was found. The accused proved that she was a prostitute, unchaste woman and having immoral character. The trial Court did not believe the prosecution and acquitted the accused. On appeal, the High Court also confirmed the trial Court’s judgment.

State of Maharashtra vs. Madhukar N. Mardikar (1991 (1) SCC 57)

In this case, a police inspector raided a brothel house, and arrested prostitutes and confined them in the Police Station. He demanded the prosecutrix-one of the prostitutes to sleep with him.

She did not agree. He enjoyed sex with her forcefully. She gave the complaint to the higher authorities. The accused contended that the prosecutrix was a prostitute; hence the provisions of rape cannot be attributed. The trial Court imposed the punishment on the accused-sub-inspector.

The High Court reversed the judgment of the trial Court. On appeal, the Supreme Court confirmed the punishment on the accused, and observed:

"The unchastely of a woman could not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate it against her wish. She is equally entitled to the protection of law. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard. The accused being police officer should abide the law and should protect the helpless. Here the accused violated the duties entrusted to him.”

J. Suicide:

In a case, where the woman raped, committed suicide due to shame and humiliation, it does not end the prosecution and does not give the way to acquittal of the accused.

State of Karnataka vs. Mahabaleshwar Gourya Naik (AIR 1992 SC 2043)

In this rape case, the complainant-a young girl committed suicide before the trial. The accused contended that no evidence could be proved as the complainant-girl died. The trial Court did not admit his contention and continued the enquiry on the medical reports and circumstantial evidence, and imposed the imprisonment on the accused. On appeal, the High Court reversed the judgment of the trial Court. On appeal, the Supreme Court confirmed the trial Court’s judgment.

K. Kartar Singh vs. State (1993 CrLJ 1483)

Brief Facts: The prosecution alleged that the accused did the rape and unnatural offence against two minor girls. According to medical report, the accused penetrated his fingers in the private parts of the girls, and later raped them. He also ejected semen in the mouth of one of the girls, and discharged urine in the mouth of the other girl.

The trial Court convicted the accused under Sections 376, 377 and 511. On appeal, the High Court and Supreme Court confirmed the judgment of the trial Court, and opined that the accused’s acts were brutish, beastly, barbarous, depraved and lustful.

L. Problem:

Can a husband be called as a rapist, if he commits intercourse with his own wife?

Solution:

Ordinarily, if a husband commits intercourse with his own wife, it is not called as a rape. Exception to Section 375 also confirms it. However, in two occasions, a husband can be convicted for the offence of rape, and such occasions are:—

(1) If a husband commits intercourse with his own wife, who is living separately from him, it is called as a rape.

(2) If a husband commits intercourse with his own wife, who is under the age of fifteen years, it becomes rape.

Intercourse by a man with his wife during separation: Section 376-A lays down that whoever has sexual intercourse with his own wife, who is living separately from him under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.

M. Intercourse by public servant with woman in his custody:

Section 376-B lays down that whoever, being a public servant, takes advantage of his official position and induces or seduces, any woman, who is in his custody as such public servant or in the custody of a public servant subordinate to him, to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.

N. Intercourse by superintendent of jail, remand home, etc.:

Section 376-C lays down that whoever, being the superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution takes advantage of his official position and induces or seduces any female inmate of such jail, remand home, place or institution to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.

O. Intercourse by any member of the management or staff of a hospital with any woman in that hospital:

Section 376-D says that whoever, being on the management of a hospital or being on the staff of a hospital takes advantage of his position and has sexual intercourse with any woman in that hospital, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.

P. Distinction between Rape and Adultery:[Refer to topic Adultery.]

Q. D.P.P. vs. Morgan (1975) (2) AER 347)

Brief Facts:

This case created sensation in Great Britain. Accused-2 was the husband. He abetted Accused-1 to have intercourse with his own wife (Accused-2’s wife). Accused-1 believed by the version of A-2 that the wife was a consenting party. He committed intercourse with her. She prosecuted both of them. The trial Court convicted both the accused. Both the accused appealed the House of Lords.

Judgment:

On appeal, the House of Lords acquitted the Accused No.1 admitting that Accused No.1 believed in good faith that wife was consenting party. However their Lordships confirmed the conviction against the husband, who aided and abetted A-1 to have sexual intercourse with his wife knowing that she did not consent.

Hence their Lordships held that the husband was guilty of aiding and abetting rape notwithstanding that the other man was acquitted of rape on the ground that he mistakenly believed that the woman was consenting. The House of Lords held that it was immaterial that the accused-2 was the woman’s husband.

Effect:

The decision of House of Lords created sensation in Great Britain. This decision created controversy and disapproval. As a result, the Home Secretary of British Government, appointed an independent Committee under the Chairmanship of Mrs. Justice Heilborn to advise him “whether a change in the law is necessary?”

R. Capital Punishment:

Recently in the month of December, 1998, the NDA Government had introduced a Bill in the Parliament proposing to impose capital punishment against rapists. It is under consideration.

S. Supreme Court’s Guidelines to Check Sexual Harassment in Employment

(Class Action Petition)

Certain social activists and Non-Governmental Organisations (NGOs) brought a “Class Action Petition” under Article 32 for the Supreme Court’s directions to prevent sexual harassment of working women in the factories, private and Government offices.

The Bench consisted the Chief Justice J.S. Verma, Mrs. Justice Sujatha V. Manoharand Justice B.N. Kirpal. The Supreme Court, in its judgment dated 13-8-1997, laid down guidelines and norms for the effective enforcement of the basic human rights of gender equality and guarantee against sexual harassment at work places.

The Chief Justice J.S. Verma, who delivered the judgment of the Bench said these guidelines and norms, rendered in exercise of the Court’s power under Article 32 of the Constitution for enforcement of the Fundamental Rights, should be treated as “The Law declared by this Apex Court under Article 141 of the Constitution”.

Guidelines and Norms:

The following are the guidelines and norms issued by the Supreme Court:—

It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to prove the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.

Sexual harassment includes such unwelcome behaviour (whether directly or by implication) as:

(a) Physical contact or advances;

(b) A demand or request for sexual favours;

(c) Sexually coloured remarks;

(d) Showing pornography;

(e) Any acts causing her unwelcome physical, verbal or non-verbal conduct of sexual nature.

Where any of these acts is committed in circumstances where under the victim has a reasonable apprehension that, in relation to the victim’s employment or work, whether she is in Government, public or private enterprise, such conduct can be humiliating and may constitute a health and safety problem, it constitutes an act of sexual harassment.

An act would be considered discriminatory, for instance, when the woman has reasonable grounds to believe that her objection to such advances would put her at a disadvantage in connection with her employment or work including recruitment or promotion or when it creates a hostile work environment or she has sufficient reason to believe that adverse consequences might follow if she raises any objection to such advances.

All employers or persons in charge of work place, whether in the public or private sector, should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation, they should take the following steps:

(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways;

(b) The rules/regulations of Government and public sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender;

(c) As regards private employers, steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946;

(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority, in particular, it should ensure that victims or witnesses are not victimised or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek their own transfer or that of the perpetrator

Where such conduct amounts to misconduct in employment as defined by the relevant service rules appropriate disciplinary action should be initiated by the employer in accordance with those rules.

T. Apparel Export Promotion Council vs. A.K. Chopra (1999 (1) Sup. To-day 110)

Brief Facts:

A.K. Chopra was an officer in the appellant company. He molested an unmarried girl, who was working as typist-cum-clerk in his office. He tried to sit behind her, and to touch her body in several occasions. She gave a written complaint against him on 16-8-1988 to the appellant company.

The appellant company conducted departmental enquiry, in which the respondent was found guilty. The appellant removed the respondent from the services. The respondent appealed to the High Court. The High Court admitted the findings of the enquiry, but quashed the removal order. Aggrieved by it, the appellant company filed appeal before the Supreme Court.

Judgment:

The Supreme Court gave the judgment holding that the High Court erred in ordering to re-instate the respondent. Their Lordships observed that when the facts and guilty of respondent were apparent on the face of the record, and also admitting the findings of enquiry, the High Court might have not overlooked them. The Supreme Court upheld the Removal Order of the appellant company against the Respondent.

U. Santosh Kumar vs. State of M.P. (AIR 2006 SC 3098)

Brief Facts:

The accused/appellants were R.T.C. driver and conductor. While the prosecutrix was travelling in a bus, the accused raped her. She protested and injuries on her chest and stomach. The accused/appellant argued that there were no injuries on her private parts. One of the prosecution witnesses became hostile.

Judgment:

The trial Court convicted them under Section 376 (2) (g). On appeal, the High Court confirmed the trial Court’s judgment. The Supreme Court too confirmed the trial Court’s judgment.

V. State of H.P. vs. Asha Ram (AIR 2006 SC 381)

Brief Facts:

The accused is the father of the girl-prosecutrix. The accused defence was that there were strained relations with his wife, and due to the grudges his wife hoisted this false case against him. The sister (PW3), mother (PW2) and other witnesses gave evidence. The prosecution also submitted medical evidence.

Judgment:

The trial Court convicted the accused. On appeal, the High Court acquitted the accused. The State appealed to the Supreme Court. The Supreme Court confirmed the trial Court’s judgment.

W. Om Prakash vs. State of U.P. (AIR 2006 SC 2214)

Brief Facts:

The prosecution was that the accused committed the rape against a pregnant woman. The accused contended that he did not know that she was pregnant. The trial Court convicted him under Section 376 (2) (e), concluding that there was “full possibility” of the accused knowing it. On appeal the High Court also confirmed it.

Judgment:

The Supreme Court held that there is a gulf of difference between possibility and certainty. Mere possibility of knowledge is not sufficient in the serious nature of the offence, as statutorily prescribed, more stringent sentence is provided, it must be established and not a possibility is to be inferred, and that positive evidence is to be adduced about the accused “knowing her to be pregnant”.

Thus the Supreme Court altered conviction from Section 376 (2) (e) to Section 376 (1) and sentenced to 7 years’ imprisonment.

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