Explained: Why CJI B R Gavai termed 1978 Supreme Court ruling on custodial rape in Maharashtra ‘moment of institutional embarrassment’

CJI Gavai made these remarks on Wednesday during his 30th Justice Sunanda Bhandare Memorial Lecture held in New Delhi on the subject ‘Justice for All: Building a Gender Equal and Inclusive India.’

The case

According to the prosecution, the victim, a tribal girl aged between 14 and 16, was raped by two police constables inside a police station premises in the Vidarbha region in March 1972. The girl, who had lost her parents in childhood, was living with her brother; both worked as labourers. Occasionally, she worked as a domestic helper, where she met the nephew of a woman in that house and eventually the two decided to marry, to which her brother disagreed and filed a report that the girl was kidnapped by her lover and his family members.

As per prosecution, on March 26, 1972, the head constable of the police station concerned brought the girl, her lover, and his family members to the police station around 9 pm and recorded statements. By 10.30 pm, the head constable asked everyone to leave and asked the victim’s brother to bring a document regarding her birth date. After the head constable left, the accused officials asked the girl to stay and told her companions to leave. One of the constables then raped her in the police station premises, while the other, intoxicated, sexually assaulted her. When her companions waiting outside became suspicious and attracted the crowd, the rape complaint was filed.

Sessions court’s acquittal

On June 1, 1974, the sessions court acquitted the accused, citing “no satisfactory evidence to prove the victim was below 16 years of age on the date of occurrence.”

The judge observed the victim was “a shocking liar” and found her testimony “riddled with falsehood and improbabilities,” concluding that the offence of rape was not proved. The district and sessions judge further stated she was “habituated to sexual intercourse, but after finding that her companions and the lover would get angry with her, she had to sound virtuous.”

HC reverses acquittal

The HC observed it was highly improbable the girl would have made advances towards strangers and concluded the initiative must have come from the accused.

The prosecution appealed before the Nagpur bench of the Bombay High Court, which reversed the acquittals on October 12, 1976. The HC ruled that the sexual intercourse was “forcible” and amounted to rape, convicting one accused of rape and other of assault to outrage woman’s modesty.

“Since both the accused were strangers to the girl, it was highly improbable that the girl would make any overtures or invite the accused to satisfy her sexual desire. It is possible that a girl who was involved in a complaint filed by her brother would make such overtures or advances. However, the initiative must have come from the accused and if such initiative came from the accused, she could not have resisted the same,” the HC had observed.

Supreme Court sets aside convictions

A Supreme Court bench of Justices A D Koshal, Jaswant Singh and P S Kailasam on September 15, 1978 passed a judgement and set aside the Bombay HC (Nagpur bench) convictions. The SC verdict, which was published in 1979 observed that no marks of injury after the incident indicated that alleged intercourse was a “peaceful affair,” and her “story of stiff resistance” was “all false”.

The bench also said offence of rape was not proved and girl’s claim of shouting loudly for help was “tissue of lies” and “cries and alarms,” were “of course, a concoction on her part.”

It said that while she was leaving the police station with her brother, the constable had caught hold of her and she did not make any attempt at all to resist. The SC added, “Her natural impulse would be to shake off the hand that caught her and cry out for help even before she noticed who her molester was. Her failure to appeal to her companions who were no others than her brother, her aunt and her lover, and her conduct in meekly following constable appellant and allowing him to have his way with her to the extent of satisfying his lust in full, makes us feel that the consent in question was not a consent which could be brushed aside as ‘passive submission.”

The SC also observed that “onus was always on the prosecution to prove and make out that all ingredients of Section 375 (rape) of the Indian Penal Code were present.”

‘Turning point in addressing inadequacies of criminal law’

The SC verdict, as per CJI Gavai, became a “turning point” and “the public outrage and the nationwide protests that followed, led by human rights groups, students and legal activists, ignited the modern Indian women’s rights movement.”

It led to several legal reforms in criminal law including the Criminal Law Amendment Act, 1983, which provided Section 376 (2) (a) under IPC stipulating punishment for custodial rape by police officer. Moreover, Section 228A was added in IPC preventing disclosure of identity of the victim of certain offences among other reforms. The Evidence Act was also amended with addition of provision of presumption of absent of consent in certain prosecution of rape and burden of proof was shifted to accused.

“The judgment compelled the nation to confront the inadequacies of its criminal law and catalysed the amendments in criminal law, which redefined the concept of consent and strengthened legal protections against custodial rape,” CJI Gavai said.

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