Mathura Gang Rape Case

ABSTRACT:

The article looks at the changes after the heinous incident viz.; Mathura rape. A few years ago, there have been many changes in the law relating to rape, but one question remains: Has the law really changed? The claim that the same judicial mind was used in the Mathura rape case is valid even today, in view of the Supreme Court judgments. And the concept of consent or non-consent remains the same issue as changes to the law have failed to address passive consent and medicalization of consent. The article states that the change in law has not changed the conviction as amendments to the replaw do not go away from this circular address of consent and non-consent. The answer came in accordance with law and with consent in cases other than rape, which is in property and in contract which is based on sympathy of intent. Thus, the article concludes that since the law is dynamic and changing day by day and it needs to be rebuilt for the development of women under the law and not its purpose. KEYWORDS: #changes, #law, #judgment, #judicial #mind, #consent, #issues, #conviction, #Amendment, #property, #contract, #dynamic, #reconstruction. TITLE OF THE CASE: Tuka Ram AndAnrvs State Of Maharashtra on 15 September, 1978 PETITIONER: TUKA RAM AND ANR. Vs. RESPONDENT: STATE OF MAHARASHTRA DATE OF JUDGMENT: 15/09/1978 Equivalent citations: 1979 AIR 185, 1979 SCR (1) 810 BENCH: KOSHAL, A.D. BENCH[AB1] [AB2] [AB3] [AB4] :

KOSHAL, A.D. SINGH, JASWANT KAILASAM, P.S. INTRODUCTION: Feminist activism in India gained momentum in late 1970's. One of the most National level issues that brought women's group together was a Mathura's Gang Rape Case. The day of 26th March 1972, considered as the black day in the history of empowerment of women. On 26th 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 compoundof Desaiganj Police Station in Chandrapur district, of Maharashtra as it led to amendments in Rape Law via The Criminal Law Amendment of 1983. The judgment is given by Justice Jaswant Singh, Kalisam and Khosal who were highly criticized by the people for their legal fallacies and the interpretation of the law for ambiguous and the sexiest tone.Then after the Supreme Court acquitted the accused,there was a huge public outcry and protests against the laws of the country. FACTS OF THE CASE: A young tribalgirl named Mathura lived with her brother Gama She worked as the laborer 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 ensuringthat Mathura had been kidnapped by Nushi, her husband Laxman and Ashok on 26th of March, 1972. The statements of Ashok and Mathura were recorded at about 10:30 P.M., 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 appellants 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 pubic hair. The semen however found on the girl's clothes. After examining her doctors has also estimated the age of Mathura as between 14 to 16 years. JUDGMENT BY THE SESSION JUDGE: 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 shewas scared of Ashok and Nushi that is why she had not made any sound. The district judge therefore acquitted both of the appellants. JUDGMENT BY THE HIGH COURT:

The Bombay High Court has reversed the order of the Session Court and held that the sexual intercourse was a rape and not a consensual sexual intercourse. It is proved by the evidence that since, both the accused were stranger to Mathura, how she can have sexual intercourse with them to fulfill the sexual needs of her. JUDGMENT BY THE SUPREME COURT: The appellant contended for the special leave. And Supreme Court again converted the decision of the High Court andacquitted the accused. It was agreed with the decision of the Session Judge andheld that this was a case of consensual sexual intercourse. On thisspot 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 analarm” for help she “consented to sex". ISSUES BEFORE THECOURT: 1. Whether there was consent of girl? 2. Whether the appellant No.1 and No.2 will be charged for Section 376 of Indian Penal Code? 3. Whether the act of police officer will amount to rape? 4. Whether the grounds of acquittal of the police officer by the Court are valid? ARGUMENTS: · ARGUMENT NO.1: According to the decision of the Trial Court, in the question of consent, the intercourse had developedconsensually as the girl was habituated to sex and wants to fulfill her sexual needs. But, High Court reversed the decision of the Trial Court and held that that thesexual intercourse wasa rape and not a consensual sexual intercourse. It is proved that as Mathura wasa minor and of 14 years of age, even if the consent given by her; how it can be considered as the valid consent. Hence, it was not the valid consent. · ARGUMENT NO.2: On the evidences presented before the Trial Court it was held that Mathura was habituated tosex and on the basis of this evidence, both of the appellants are not charged with Section 376 of Indian Penal Code and got acquitted. But, to the contrary HighCourt held that even though Mathura was habituated to sex and as both the accused were stranger to Mathura, how she can have sexual intercourse with them to fulfill her sexual needs. · ARGUMENT NO.3: Trial Court has acquitted both the appellant and High Court held the Police Officers liable for the offence of rape under Section 376 ofIndian Penal Code.

· ARGUMENT NO.4: The Trial Court held that since Mathura had not raised any alarm, her allegations of rape were untrue. Her ways humbly following Ganpat and were making allow him to have sexual intercourse with her and giving indication that the 'consent' in question was not a consent which could be kept aside as 'passive submission1'. According to the Trial Court police officers are acquitted on the basis that the intercourse had developed consensually and while having intercourse Mathura have not raised any alarm or did not made any soundfor help. But the High Court held both of the police officers liable for the offence of rape. ANALYSIS OF SECTION: 376; IPC, PUNISHMENT FOR RAPE: Whoever, except in the cases provided for by subsection (2) , commits 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 extend to ten years and shall also be liable to fine unless men raped his own wife and is not under twelve years of age , in which cases , he shall be punished with imprisonment of either descriptionfor a term which may extend to two years or with fine or both . Provided that 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. · Whoever,— (a) if a person being a police officer commits rape— (i) in the area of thepolice station to which he is appointed2; or (ii) in the building of any station house whether or not situated in the police station to which he is appointed; or (iii) any woman under his custody or under any subordinate police officer under him; or (b)if any person being a public servant, takes benefit of his official status and commits rape on any woman under his custody assuch public servant or under the custody of subordinate public servant; or (d)if any person commits rape with woman knowing her to get pregnant; or (e) if any person commits rape with woman under twelve years of age; or (f) if any person commits gang rape, shallbe 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: 1Tukaram v. State ofMaharashtra AIR 1979 SC 185. 2Section; 376 of IPC, 1956

Provided that, the Court may, for sufficient and particular reasons which is to be highlighted in the judgment, impose a sentence of imprisonment of either descriptionfor a term of lessthan ten years. Explanation 1.— Where a woman is being raped by one or more in a group of persons acting in furtherance of their common intention, every person of that group shall deemed to have committed gang rape under the definition of this sub-section ANALYSIS OF LAWS BEFORE THECRIMINAL LAW AMENDMENT, 2013: Rape laws have walked through several changes before attaining the present condition through various criminal law Amendment of 2013. This amendment or a change was brought at the national anger against the cruel rape of a physiotherapist student in Delhi. Rape is defined in Section 375 of the Indian Penal Code. In general sense rape is a sexual intercourse with a women without her consent by force or fear. In the year 1983 Section 375 has also gone through amendment, which had changed the definition of rape and also made changes in the punishments of the rape mentioned under Section 376. This was made through the Criminal Law (Amendment) Act of 1983. The amendment of 1983 brought due to the criticism of the judgment of “Tukaram v State of Maharashtra” i.e;Mathura Gang Rape Case3. The ratifications of the case were seen in the amendments that were brought about in the IPC and the Indian Evidence Act. Section 376 A to D is new in the IPC and section 114A was added as an introduction in the Indian Evidence Act. For analyzing the laws of the Amendment act 2013, it is important to know how thee rape and its punishment is defined at former. Before the amendment act 2013, rape involves nonconsensual sexual intercourse between man and woman. There are the six essential elements that defines rape. The first condition necessary for the commission of the rape to be the sexual intercourse between a man and a woman. It was strongly believed that the rape can be committed only if the sexual intercourse had taken place without the consent of the victim, but this is not always he case, rape can be committed even after the consent has been obtained if the women is below the age of sixteen years. On a closing part at which the situation necessarily required for the commission of rape, majorly divided into three parts. The starting two clauses deals with sexual intercourse with a woman ‘against her will’ and‘without her consent’. This means that the women is passively capable of giving consent or not. The rest two clauses again deals with, the consent given by women woman in fear by putting her family members into threat or the consent obtained through misconception. The last two situation deal with the situation consensual sextakes place with theunderage woman.

RAPE LAWS AFTER THE AMENDMENT OF 2013: Lok Sabha on19th March 2013, and Rajya Sabha on21st March 2013,the Criminal Law Amendment Act was passed and also provides for the amendment of Indian Penal Code, Indian Evidence Act, and Code of Criminal Procedure, 1973 on laws related to sexual offences. The Bill received President’s assent on 2nd April 2013.Widespread protest of the society forced the legislature to change the prevalent rape laws. The basic aim was to formerly implementing the cruel punishment of the rape rather than broadening the definition of the rape. Late Justice J.S.Verma, GopalSubramaniam and Ex-Justice Leila Seth comprised with the famous ‘Justice Verma Committee’ which was made to accumulate suggestions and make recommendations for the legislature to make a law to combat rape and other crimes against women. A law is only as good as the systems and individuals that implement them. Thinkingand attitudes of the society need to be changed so that women can be treated equally and can truly be respected without any discrimination and what are their value in society.”4 The offence of rape hasnow been amended and got a huge ambit which is enough to include all kind of penetration in any part of the body of a girl. The fact that the new suggestions added that any penetration would be considered as rape was the most capable tool in widening the domain of the term rape which was demanded on the grounds of suggestions of the fifth law commission report. Registering complaints and medical examination are also the part of this recommendation. The report surely mentioned, “Any officer, who do not register a case of rape complained or reported to him, or attempts to avoid its investigation, commits an offence which shall be punishable as prescribed5”. CRITICAL COMPARISON OF THE TWO LEGISLATIONS: As the view of the societal view changes time to time the law also changes frequently with the advent of new technologies. But it will be fair only when the matter which is regulating the law andthe prevailing in the society changes timely. The chief rape and sexual assault cases, for example the ‘Shopian Rape Case, the ArunaShanbaug Case, Nirbhaya Rape Case, Priya Patel6, the Mathura Rape Case, etc. all the above cases had an effect for functioning the rape laws and also for their interpretations as well as reformations and their changes. Rape was included in the Indian Penal Code, 1860 in its original form since 1924. On occasions of rape the evidences related to consent is on the basis of the past conduct of the woman. In the previouscases prostitutes are also get raped but their rights are not secured as a victims and always create a chaos in the mind of the judiciary. The only reason to include this 4“UN Women welcomes India’s Criminal Law (Amendment) Act as a deterrent to violence against women” available at http://www.unwomensouthasia.org/2013/un-women as-a-deterrent-to-violence-against-women; accessed on 13.06.2018 5Report of the Committee on Amendments to Criminal Law Pg416 . last accessed 03 July 2018 6Priya Patel v. Stateof Madhya Pradesh, AIR 2006 SC 2639

amendment was to prevent the breach of privacy of victim’s life by preventing it to be included as a piece of evidence in court. Last but not the least and very essentially, Sexual Harassment at Work Place Act, 2013 has also introduced with addition to the IPC and the modern definition has been provided for the rape. REASONS FOR THEENACTMENT: The brutal gang rape and the consequent death of the physiotherapy student in New Delhi was the reason of the origin of the Criminal Law Amendment Act, 2013 that came to amend the already existing laws related to the sexual offences in the country. The act has mainly implemented the IPC, Codeof Criminal Procedure and the Indian Evidence Act. THE DELHI RAPE CASE: 2012: This incident has generated widespread protest not only in India but also in Abroad. The government of India somewhere failed to provide the protection and security to the women of the country. And the protest was taking place all over the country byforming the Candle March or various types of criticism. SUGGESSTIONS OR RECOMMENDATIONS: After researching on the MathuraGang Rape Case the loopholes which should have to be taken into consideration while declaring the judgment are given below: · That the acquittal granted to both the appellant by the Supreme Court on the ground that there is no injury on the body of a minor girl that is why the offence was not amount to rapebut will be considered as consensual intercourse. For taking the opinion against this judgment, that if the girl do not have any injury on her body, it is not the valid ground of proving that the offence was not of rape but of consensual intercourse. · This is also considered as the invalid ground that the girl has not raised any alarm for help, so there might be the consensual intercourse between police officers or a girl. In the contrary statement, might the girl was unable to raise the alarm or to make a call for help, that is why the acquittal given to the accused on this ground was also not correct. · In the judgment by the Session Court the consent of a minor was also not considered as the invalid consent. Consent plays an important role in the act of sexual intercourse with a girl whether she is minor or major, if the consent is not there for intercourse how it can be considered as the consensual intercourse. Therefore, the consent is must.

· The major loophole is that the Criminal Law Amendments 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.

So, for improving the status of women as well as of judiciary in the society Criminal Law Amendment should be furnished timely, and new provisions should get implemented into the act.

Rigorous punishment for life shall be awarded to the offender.

Even if the juvenile is also committing the offence of rape, he shall also be punished with the rigorous punishment.

The concept of reformation home for the offence of rape shall not be considered for juveniles and they shall also be punished with the same.

CONCLUSION:

To conclude the Mathura gang rape case in which both the victims were obtained from the appellate court with a comparison between the legislations of 2013 and pre-2013 is discussed above. Amendments in rape cases are always done with a different aspect or definition of the crime. The Mathura gang rape case was one of the pre-independence pre-independence rape cases that drew much criticism in their hands, which eventually resulted in the development of criminal law amendments. 1998 was a year of various changes in laws relating to rape in the form of guidelines from the Visakha gang rape case, which is sexual harassment at the workplace; Rape laws before 2013. And then in the year 2013 there was a major change in the rape laws which not only changed the rape laws but also changed the definition of rape and expanded its scope from criminal law through the Delhi gang rape case. The Amendment Act in the year 2013 has been drastically amended.

The 2013 Act should be seen as an important place holder in the fight against sexual harassment and gender violence in the country. The most terrifying approach is to serve the prevailing approach to rape and sex crimes in the population, apparently in combating moral "delusions", as economic change requires far-reaching changes in gender roles, while social attitudes tend to lead to moral conservatism and Live drenched in mischief.

There are various laws prescribing deterrent punishment for crimes against women. What is really needed of a concrete law, however, was partially achieved through the passage of the Criminal Law (Amendment) Act, 2013; Sensitivity, understanding and more importantly, the police, to enforce the mindset among the officers to enforce the laws more in spirit than letter. Only then can preventive punishment be given in crimes against women.

On 15 march 2014, in the Delhi Gang Rape Case Death sentence upheld by the High court of Delhi. Fell into the rarest of rare category.