The Supreme Court and the High Courts have been giving newer guidelines and instructions. However, sad to say that all of them become in vain. Sexual offences are enhancing day by day. Their graph, in every police station, has been increasing.
There may be several multitude sexual offences unreported. Every day in every newspaper, the news of rapes, abductions, kidnappings, raggings, suicides due to rapes and raggings are published. Women, irrespective of their age, from two years child to eighty years age, are subjected to rape.
The term “incest” means “sexual intercourse within the prohibited degrees of relationship”. It is very hateful even to utter or to write that in certain occasions, the sexual relations may be established between father-daughter, brother-sister, mother-son, etc.
These relations may be established with consent or without consent by coercion, undue influence, force, etc. In India such incest’s are very rare. It is learnt that in the developed countries, the rate of incest is higher than the developing countries.
There is no doubt to say “Rape is the worst sexual abuse against women”. It is very heinous and brutal act. Such activities show no difference between man and animal. Animals are somewhat better when compared with a rapist.
It is found by the scientists that the male animals do not intercourse with calfs. The male animals can do sex with the animals only when they accept. This much courtesy is not seen in certain men.
By reading such news, the humanity bows its head with shame. Only a few of such heinous crimes are published. In majority incidents, the aggrieved women and parents do not want to publish such news and do not want to complain to the police with a fear that the reporting to the police and publishing in news papers would further cause low-degradation and shame in the society.
If a woman raped dares to approach the Police, there also she is humiliated and molested. No sympathy is shown towards the affected woman. Moreover, in the Courts also the sufficient justice is not available to the victims.
Too much delay, ridiculous questions by the defence lawyer in the cross examination, procedural and technical defects, defective evidences, etc., are the main obstructions to prove the guilty. In Damini picture it is screened very clearly showing the attitude of society and Courts towards the rape and its victims.
Vakapally Tribal women’s incidence:
A group of police raped certain Vakapally (Visakhapatnam) Tribal women. There are allegations in the Press and Media that certain Government officials protected the rapist-police by delaying in registering the complaint and in sending the victims to the medical examination, etc.
Due to intentional delay, no evidence could be available in the medical examination. No justice is made to those tribal women. However, they became the worst target of talk of the country.
Chapter-XVI of the Indian Penal Code, 1860 explains the provisions about “Offences effecting human body” This Chapter contains Sections 299 to 377. Of them, Section 375 to Section 376-D explain “Sexual Offences”. Section 375 defines “Rape”. Section 376 imposes punishments for rape and also defines “Custodial Rape”.
Section 376-A imposes punishment for the intercourse by a man with his wife during separation. Sections 376, 376-B to 376-D define and impose punishments for “Custodial Rape”.
Definition of “RAPE”: Section 375 of the Code defines Rape.
Sec. 375. Rape:
A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
Against her will.
Without her consent.
With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
With her consent, when the man knows that he is not her husband, that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or, the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
With or without her consent, when she is under sixteen years of age.
Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
Punishment for Rape:
Section 376 of the Code imposes punishment for rape.
Sec. 376. Punishment for rape:
(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(a) Being a police officer commits rape,—
(i) Within the limits of the police station to which he is appointed; or
(ii) In the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) On a woman in his custody or in the custody of a police officer subordinate to him; or
(b) Being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) Being on the management or on the staff 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 commits rape on any inmate of such jail, remand home, place or institution; or
(d) Being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) Commits rape on a woman knowing her to be pregnant; or
(f) Commits rape on a woman when she is under twelve years of age; or
(g) Commits gang rape;
Shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may, be for life and shall also be liable to fine:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, imposed a sentence of imprisonment either description for a term of less than ten years.
Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.
“Women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widows home or by any other name which is established and maintained for the reception and care of women or children.
“Hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention and rehabilitation.
“Rape”, in general sense, is sexual intercourse procured by violence. There are six descriptions mentioned in Section 375 are deemed as rape. The First description says that when sexual intercourse is procured against a woman’s will, is a rape.
According to the Second description, when sexual intercourse is obtained without her consent, is a rape. The third description says that even though her consent is obtained by creating the circumstances of fear of death or of physical injury against herself or against any other person on whom she is interested, it is a rape.
The Fourth description says that when a man, who is not the husband of that woman, makes to believe that he is her husband and obtains consent for sexual intercourse, is also rape. (The Fourth description is similar to Section 493 of the Code.)
The fifth description says that when the offender does intercourse with a woman, who is mad or is in unconsciousness or intoxicated, is a rape. According to sixth description, when a woman is under sixteen years of age, it is immaterial whether she has given her consent or not for intercourse, such intercourse is a rape. For all the descriptions mentioned in Section 375, complete intercourse is not necessary and a mere penetration is sufficient to constitute the sexual intercourse to the offence of rape.
The only exception given in Section is that when a husband commits intercourse with his wife, above the age of 16 years, is not a rape. If a husband does intercourse with his own wife under fifteen years age is a rape.
Section 376 (1) imposes punishment for the offence of rape. The wrong-doer shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be extended for life or for a term which may extend to ten years and shall also be liable to fine Nature of offence: Cognizable, non-bailable, non-compoundable and triable by Court of Session.
C. Custodial Rape:
“Custody” means “guard, confinement, care, charge”. When a woman is under the guard or confinement or care or charge of a man, and that man commits intercourse her with or without her consent, is called “Custodial Rape”. Section 376 (2) defines “Custodial Rape” The offence “Custodial Rape” which is defined in Sec. 376(2) is graver and severe than the offence “Rape” as defined in Section 376 (1), The punishments are also severe for custodial Rape than Rape. [Refer to Section 376 above given.]
Tukaram vs. State of Maharashtra (AIR 1979 SC 185) (Madhura Case)
It is a sensational case. Mathura, a 15 years old Harijan orphan girl was called to the Police Station, Desaigunj and was raped by two constables Ganpat and Tukaram. This happened in 1972. On trial, the Sessions Judge of Chandrapur acquitted the offenders.
On appeal, the Bombay High Court (Nagpur Bench) reversed the finding of the Sessions Judge and found Ganpat guilty of rape and sentenced him to five years rigorous imprisonment, and sentenced Tuka Ram to one year rigorous imprisonment. Accused appealed to the Supreme Court. On 15-09-1978, the Supreme Court reversed the finding of the High Court. As a result, both the appellants-accused were acquitted.
The judgment of the Supreme Court received great significance throughout India. It was widely criticised by press that it was an extraordinary decision sacrificing human rights and dignity of women under the law of the land and Constitution. There was a move to reopen the Mathura Rape case, as the judgment of the Supreme Court stirred the conscience of many and leaded to agitation and demands for a review of the judgment.
However, the Supreme Court did not review the Mathura Case. But hot discussions were made in Parliament on Sections 375 and 376 of the Code. As a result, the Criminal Law (Amendment) Act, 1983 (Act No. 43 of 1983) war passed amending Sections 375 and 376. Thus the scope of these Sections was widened. Sub-section-(2) and Explanations were added to Section 376 defining “Custodial Rape”.
The Criminal Law (Amendment) Act, 1983 is also known as the Anti-Rape Amendment Act, which imposes penalties varying from 7 years rigorous imprisonment to life with fine on the accused-rapists.
The amended provision makes sexual intercourse by a person in the position of a custodian of his victim – terms as “Custodial Rape” as an offence punishable with imprisonment of at least 10 years which may extend to life and also to fine.