Rape

INTRODUCTION

The provisions relating to aggravated rape were introduced into the

Indian Penal Code by the Criminal Law (Amendment) Act of 1983, which
was enacted in response to rape law reform movement post the decision
of the Supreme Court in the Mathura case i.e. Tukaram v. State of
Maharashtra, (1979) 2 SCC 143. Seven categories of rape were
considered aggravated, higher minimum punishments were prescribed,
and evidentiary rules were changed for aggravated rape cases. Changes
were made again in 2013, when the Criminal Law (Amendment) Act was
enacted in response to the December 16 gang rape-homicide incident in
Delhi. The categories of cases where rape amounted to an aggravated
form was increased to fourteen, separate provisions were introduced for
causing death during an act of rape, and to deal with repeat offenders. In
this module, we will discuss these provisions relating to aggravated rape.
We will also look at the issuing of proving rape, focusing on the impact of
stereotyping and rape myths on rape adjudication. We will also briefly
discuss sentencing in rape cases.
HISTORY OF THE AGGRAVATED RAPE PROVISIONS – THE
MATHURA AND PRATAP MISRA CASES

1. Pratap Misra v. State of Orissa

Two cases decided by the Supreme Court in the late 1970s, led to major
changes in the rape law thereafter. The first was the decision of the Court
in the case of Pratap Misra v. State of Orissa, (1977) 3 SCC 41. The
case involved the gang rape of a 23 year old pregnant woman. The
woman was married to one, Bata Krishna Rout, who was already married
at the time when he married the prosecutrix. The High Court had
described the woman was the “concubine” of Rout, presumably
disapproving of the bigamous relationship [(1977) 3 SCC 41 at p. 42-43].
Rout and the prosecutrix who was five months pregnant at the time of
the incident, had gone on a vacation to a wildlife park. The Court noted
that the prosecutrix had worked as a midwife with a doctor, a fact that
became relevant in its assessment of whether sexual intercourse was
consensual or not. The prosecution argued that the prosecutrix and her
husband were in their room in the guest house, when they were
approached by a group of young men who were in the adjoining room.
The men asked the prosecutrix, and her husband to open the door, which
they refused to do, since they were having dinner, and asked them to
come later. A few minutes later, the men returned and insisted that the
door be opened. When it was, they dragged the husband away and then
took turns to rape the prosecutrix. The woman miscarried a few days
later. The prosecution argued that this was a result of the trauma
suffered because of the rape.
The Supreme Court did not believe the version of the prosecutrix. The
Court noticed that there were no injuries on the body of the prosecutrix
and on the private parts of the accused, and observed that a woman will
necessarily resist an attack on her. The absence of injuries led the Court
to conclude that the intercourse was consensual. They also noted that the
prosecutrix had the opportunity to close the door when the first accused
left the room after raping her. Since she had not done so, they doubted
whether intercourse was actually non-consensual. The other
circumstances that led the Court to conclude that intercourse was
consensual were: First, that the prosecutrix had not complained about
the rape to the officials of the forest department who reached the spot;
second, there were no semen stains on a towel worn by the accused men;
and thirdly, the absence of medical evidence. The Court also observed
that as a trained midwife the prosecutrix, would have known how much
resistance she could put up without harming the foetus. They ultimately
surmised that the case was possibly one of consent, that intercourse was
with the “tacit consent” of the prosecutrix and the “connivance” of her
husband.

This case indicated the various problems with rape adjudication. The
Court took a moralistic stand due to the fact that the prosecutrix was in a
relationship with a married man – going to the extent of calling her a
concubine. There was over-reliance on medical evidence – to the extent
that the Court tried to precisely estimate when the foetus would have
been miscarried. It did not take into consideration that the prosecutrix
did not possibly resist because she was pregnant and realised that any
trauma might endanger the life of her unborn child.
 2. Tukaram v. State of Maharashtra – The Mathura Case

Tukaram v. State of Maharashtra, (1979) 2 SCC 143, involved the

rape of a young woman in a police station. Mathura, the prosecutrix in
this case, had been called to the police station since a FIR for kidnapping
had been filed against the man whom she was in a relationship with. The
allegation was that two policemen who were posted at the station had
sent Mathura’s companions out of the station and one of them had raped
her in the lavatory attached to the station. The Sessions Court had
acquitted the accused of the charge of rape. It mainly relied on the
medical report which had indicated that Mathura’s hymen was ruptured
and that the doctor had been able to insert two fingers into her vagina.
On this basis, the Sessions Court had concluded that Mathura was
“habituated to intercourse.” It said that Mathura was a “shocking liar”
whose testimony was “riddled with falsehood and improbabilities.” It
further said that “there was a world of difference between sexual
intercourse and rape.” The court concluded that intercourse was
consensual and in order to “sound virtuous” before her “lover,” Mathura
had alleged that she had been raped by Ganpat, the police constable. The
High Court, on the other hand, had believed Mathura’s version and had
convicted the accused for rape. It stated that the case was one of “passive
submission” and did not involve consent.

The Supreme Court ruled that the case was not one of “passive
submission” since Mathura had not been subjected to any fear or
compulsion. It was influenced by the fact that there were no injuries on
Mathura’s body. To the assertion that she had screamed which went
unheard, the Court termed this assertion as a “tissue of lies.” It reasoned
that since her relatives were present in the police station, Mathura’s
“natural tendency” would have been to shake off the effort made by the
accused to hold her hand, and to scream even before the incident
occurred. Hence, the Court acquitted the men of the charges of rape. The
Supreme Court did not take into consideration the vulnerable situation
that the girl was in when she was summoned to the police station - the
same station where criminal proceedings had been initiated against the
man she was in a relationship with. It did not consider the power-
differential between the policemen and her. On the other hand, the Court
gave importance to Mathura being sexually active, to the lack of injuries
on her body, and to her not screaming. Like in Pratap Misra, the
Court did not appreciate the possible reasons because of which Mathura
did not resist, or the reason for not screaming, let alone the necessity for
resisting or screaming.

3. The Open Letter by Academics

In reaction to the decision of the Supreme Court in the Mathura case, a

group of academics (Prof. Upendra Baxi, Prof. Lotika Sarkar, Prof.
Vasudha Dhagamwar, and Prof. Raghunath Kelkar), wrote an open letter
to the Chief Justice of India, seeking a rehearing of the case by a larger
bench or the Full Court.1 The academics raised various pertinent issues
relating to the case. They asked the Court whether it expected a young
girl “when trapped by two policemen inside the police station, to
successfully raise alarm for help?” They wondered why the Court
expected Mathura to put up stiff resistance, and why non-resistance
should imply consent. The open letter also drew the Court’s attention to
its overreliance on Mathura’s sexual history. Although the Supreme
Court did not reopen and re-hear the case, the Open letter and other

1
Upendra Baxi et.al. An Open Letter to the Chief Justice of India, (1979) 4 SCC J-17
efforts by academics, lawyers and members of civil society led to major
amendments to the Indian Penal Code in 1983.