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Custodial Rape

INTRODUCTION:

Rape, it is the most heinous crime inflicted upon the human race by themselves without any gender partiality. Innocent animals too are falling prey to this gruesome act nowadays. Custodial rape is one of its kind. Taking advantage over a vulnerable person, being exploited sexually by another person who has sovereign power over that said person when taken into custody amounts to custodial rape.Custodial rape maybe committed by a police officer, public servant, person on the management or staff of a jail or a remand house or other place of custody for women and children, or by one on the management or staff of a hospital.[1] Custodial rape, which is as serious and cruel as custodial deaths went highly unreported for so many decades until a young tribal girl was raped by two policemen in the state of Maharashtra.[2]

THE MATHURA RAPE CASE:

Mathura, an orphan tribal girl who had gone to the police station to file a complaint regarding her missing husband, was allegedly raped by two constables inside the bathroom of a police station in Gadchiroli district of Maharashtra. A case was filed and heard in front of the Nagpur Bench of the Bombay High Court. The bench found the policemen guilty and sentenced one policeman to one year and the other policeman to five years of imprisonment. When the decision was challenged at the Supreme Court, the Court acquitted the policemen saying “Mathura had raised no alarm; and also that there were no visible marks of injury on her body thereby suggesting no struggle and therefore no rape”[3]. Her last shred of dignity was stripped away when the Supreme Court said she was used to sex so much that she might have incited the cops who were already under the influence of alcohol to have intercourse with her.[4] This led to many protests throughout the country forcing the Supreme Court to review the judgement in this case. The Supreme Court then amended the existing rape laws via The Criminal Law Amendment Act, 1983 (No.43).

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 RAPE: AGAINST A GENDER OR HUMANITY?

The father-son duo (Jeyaraj and Bennix) from Sathankulam, a town in the state of Tamil Nadu, were tortured and murdered by policemen in custody. The allegation on them was that they kept their shop open for a little longer past the curfew time implemented by the State Government. Friends of the deceased stand witness to all the atrocious acts done to them by the policemen. Bennix’s friends were forcefully sent out of the police station and no one was allowed to meet the father and the son. Their friends are claiming that they were sexually tortured saying, “they came out of the station with torn pieces of cloth and were covered in blood. Between 7 am and 12 pm on June 20, 2020, the father and son had changed at least seven lungies each as they had become wet due to the blood oozing from their rectums.”[5] Bennix’s friend Rajkumar also added saying, “they literally pushed me out of the station and closed the doors. From 7 pm to 10 pm, we heard only the screams and cries of Jeyaraj and Bennix. At 11 pm we managed to sneak in and saw Bennix who was lying naked and covered in blood.”[6]

Crimes like this have transcended beyond any gender lines and have now become a crime against humanity. Laws should be made more strict and stringent to curb and completely eradicate incidents like this from happening ever again.

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PUNISHMENT FOR CUSTODIAL RAPE:

Through the Criminal Law Amendment Act, 1983, a new category called custodial rape was added to the Indian Penal Code, 1860 i.e., Sections  376 B to D .The punishment for custodial rape by a public servant is at least 7 years and may extend up to 10 years with fine.[7]

CUSTODIAL RAPE: TRENDS FROM THE 70s

The other two landmark custodial rape cases that came into light in the late 1970s and early 1980s were the Rameeza Bee’s case and the Maya Tyagi case that stirred protests throughout the country changing people’s perspective over this crime. In the author’s opinion, custodial rape is underreported like other crimes in the country. It is done by the family and the close circle of the victims often, in order to protect the victim from other forms of violence, shame and abuse; in case of female victim, to preserve her chastity which is absurdly valued the most in the Indian culture over the ghastly act and injustice committed to her.

ZERO FIR – A POSSIBLE SOLUTION?

The seriousness of the issue, not to forget the mental and physical toll upon the victims, is concealed and the victims are forced to move on in silence. This has to stop, at least to protect another human being from falling prey to this violent crime. Crimes like this have to be reported immediately in order to make sure Justice is served. Zero FIR is a unique feature which can be used to report crimes like this. Using ‘Zero FIR’ a crime can be reported at any police station without any jurisdictional limitations and the same will be transferred to the concerned police station within the jurisdiction where the crime has been committed. This way speedy justice can also be ensured.

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[1] MAMTA RAO, LAW RELATING TO WOMEN AND CHILDREN 109 (3rd ed. 2012).

[2] Tuka Ram And Anr vs State of Maharashtra, 1979 AIR, 185.

[3] Ibid.

[4] Moni Basu, The girl whose rape changed a country, CABLE NEWS NETWORK, INC, http://edition.cnn.com/interactive/2013/11/world/india-rape/.

[5] Prabhakar Tamilarasu, Sexual torture inflicted on father-son in TN police custody: Witness, THE FEDERAL (June 24, 2020, 7:15PM), https://thefederal.com/states/south/tamil-nadu/sexual-torture-inflicted-on-father-son-duo-before-death-in-tn-eyewitnesses/.

[6] Ibid.

[7] The Criminal Law Amendment Act, 1983, No.43, Acts of Parliament, 1992 (India).


Cite this article (The Bluebook 20th ed.)-

Gharishma Bashyam, Custodial Rape, Ex Gratia Law Journal, (September 7, 2020), https://exgratialawjournal.in/blawg/women-and-law/custodial-rape-by-gharishma-bhashyam/.

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Author

Gharishma Bashyam
Student - School of Excellence in Law, The Tamil Nadu Dr. Ambedkar Law University.