Law Notes for LLB:This article provides law notes. This article is focus on rape under IPC. This article discuss about the definition of rape under section 375 of IPC and gang rape under 376D of IPC. This article include some landmark judgement relating to gang rape and rape.
The word rape is derived from the Latin term rapio, which mean ‘to seize’. Thus rape literally means a forcible seizure. After the 2012 Delhi gang rape case, Justice JS Verma Committee was appointed to suggest amendments to criminal law to sternly deal with sexual assault cases.
Based on the recommendations of this committee The Criminal Law Amendment Act, 2013 was enacted.
The Criminal Law Amendment Act, 2013 changed the definition and scope of the offence of rape.
What is the Section 375 IPC?
Section 375 IPC talks about the definition of rape.
Sec 375 of IPC defines the offence of rape as a man is said to commit “rape” if he-—
- penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
- inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
- manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any ~ of body of such woman or makes her to do so with him or any other person; or
- applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions.
Against her will:
The word ‘will’ implies the faculty of reasoning power of mind that determines whether to do an act or not. Every act done ‘against the will’ is obviously ‘without the consent.’ But every act ‘without the consent’ is not ‘against the will.’
State of Uttar Pradesh v. Chottey Lal [(2011) 2 SCC 550]
In this case, the accused caught hold of the victim and when she tried to raise alarm the accused showed fire-arm to her and gagged her mouth and committed forcible intercourse with the prosecutrix. Here the Court stated that the expressions `against her will’ and `without her consent’ may overlap sometimes but surely the two expressions in clause First and clause Secondly have different connotation and dimension. The expression `against her will‘ would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition.
State of Punjab v. Gurmit Singh (AIR 1996 SC 1393)
In this case, a young girl below the age of 16 years was abductedfrom her school by the three accused in a car, and she was threatened with death if she raised an alarm. Despite her refusal she was made to drink liquor. Then she was raped by each one of them in turn under the threat of being killed if she persisted in raising an alarm. Here the Supreme Court convicted the accused person and issued certain guidelinesfor trial in such cases.
The guidelines for trial in cases of rape are as follows:
- Delay in lodging FIR is not material when properly explained.
- Testimony of victim in cases of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Court should find no difficulty in convicting the accused on prosecutrix’s testimony alone.
- Trial of sexual offences should be in cameraand invariably by a lady judge whenever available.
- Court must restrain making observations that probably the prosecutrix is a girl of loose moral character.
- Court is under an obligation to see that prosecutrix is not unnecessarily harassed and humiliated in cross-examinationin case of rape trial.
2) Without her consent:
The important ingredient of the offence of rape is the absence of consent. The object behind the exemption from liability in the case of consent is based on the principle that a man is the best judge of his or her own interest, and if a man (includes woman) decides to suffer a harm voluntarily, he or she cannot complain of it when it comes about.
According to Explanation 2 given u/s 375, consentmeans an unequivocal voluntary agreement when the person by words, gestures or any form of non-verbal communication, communicates willingness to participate in the specific sexual act.
TukaRam v. State of Maharashtra (AIR 1979 SC 185)
In this case, a 16-year-old tribal girl was raped by two policemen in the compound of police chowky in Chandrapur district of Maharashtra. Her relatives, who had come to register a complaint, were patiently waiting outside even as this heinous act was being perpetrated in the police station. At the Sessions Court, victim was accused of being a “liar” and that since she was “habituated to sexual intercourse”, her consent was given. The Nagpur bench of the Bombay High Court set aside the judgment holding that that passive submission due to fear induced by serious threats could not be construed as willing sexual intercourse. However, the decision of the Supreme Court remains a blot on its record to this day. The rationale for acquittal was that Mathura had not raised an alarm and there were no visible marks of injury on her body. The judgment did not distinguish between consent and forcible submission.
However, the Supreme Court acquitted the accused person. The rationale for acquittal was that victim had not raised an alarm and there were no visible marks of injury on her body. The judgment did not distinguish between consent and forcible submission.
This case stirred up great passions and resentment amongst people in the society. This resulted in the Criminal Law Amendment Act being passed in 1983. This act amended Section 114(A) of the Indian Evidence Act.
Section 114(A) of the Indian Evidence Act:
Presumption as to absence of consent in certain prosecution for rape. –In a prosecution for rape, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent.
3) Consent procured by putting the woman under fear of death or hurt is no consent in law:
Where a man has sexual intercourse with a woman with her consent, when her consenthas been obtained by putting her or any person in whom she is interested in fear of death or of hurt, he is guilty under the third clause of committing rape .
State of Maharashtra v. Prakash (AIR 1992 SC 1275)
In this case the Supreme Court held that where a police constable and businessman had sexual intercourse with a woman by beating her husband and threatening to put him in police remand, the act falls under clause (3) of section 375 IPC. It is not necessary that there should be actual use of force; a threat to use of force is sufficient.
4) Consent accorded under a misconception that the person is husband of the woman is not a valid consent:
Consent given by a woman to a person for intercourse believing the person to be her husband whereas in fact, he is not her husband, is no consent in law. In such a situation the person knows the fact of deception, and pretends to be the husband of the woman.
Bhupinder Singh v. Union Territory of Chandigarh [(2008) 3 Cri.LJ 3546 (SC)]
In this case, the complainant Manjit Kaur married the accused Bhupinder Singh, who she had met through work and started cohabiting with him in Chandigarh. When she was pregnant, she met her husband’s two friends who told her that he was already married and had children from his first wife.
On being confronted her husband left her on the pretence of work and did not turn up even after she gave birth to a daughter. She made a complaint and he was held guilty of rape because prosecutrix married accused without knowledge of his first marriage. The consent for cohabitation was given under the belief that the accused was her husband. It was also held that delay in lodging complaint by prosecutrix couldn’t in any event wash away the offence because there was no consent.
5) Consent procured by a woman of unsound mind or under influence of intoxication etc.:
The object of this clause is to protect and safeguard the interest of the woman who accords consent for sexual intercourse without knowing the nature and consequences of the act by reason of unsoundness of mind or under the influence of stupefying or unwholesome substance. In such cases it is presumed that the consent of the woman is not free and voluntary.
Tulshidas Kanolkar vs State of Goa [(2003) 8 SCC 590)]
In this case, the accused had sexual intercourse with a mentally challenged woman. The mental faculties of the victim were undeveloped. Here the Supreme Court convicted the accused person and stated that for constituting consent there must be exercise of intelligence based on knowledge of the significance and moral effect of the act.
6) Consent of a girl under 18 not valid in law:
Sexual intercourse with a woman with or without her consent when she is below 18 years of age amounts to rape. A woman under 18 is considered incapable of giving consent for sexual intercourse. The age of consent was raised from 16 to 18 by the Criminal Law (Amendment) Act of 2013.
The Protection of Children from Sexual Offences (POCSO) Act, 2012 was enacted to provide a legal framework for the protection of children from offences of sexual assault, sexual harassment and pornography, while safeguarding the interest of the child at every stage of the judicial process.
7) When the victim is unable to communicate consent :
Sexual intercourse with a woman who is unable to communicate consent amounts to the offence of rape. When a woman is in such a state that she is unable to give consent may because of unconsciousness or any other reason and if a man has sexual intercourse with such a woman who is unable to communicate consent than it amounts to the offence of rape.
Exception 1: A medical procedure or intervention shall not constitute rape.
A medical procedure, wherein any object is inserted into the vagina, the urethra or anus of a woman does not amounts to the offence of rape. A medical procedure is usually done for the benefit of the victim or in order to collect evidence. Medical examination is a crucial piece of information which is required for the collection of medical evidences. It becomes more valuable evidence where there is no witnesses to the case.
Exception 2: Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
Since child marriage in India is not yet void and is only voidable, such a check was necessary to restrain men from taking advantage of their marital rights prematurely. No man can be guilty of rape on his own wife when she is over 15 years of age.
Independent Thought vs Union of India [(2017) 10 SCC 800]
In this case, the issue before the Supreme Court was whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape?
Here the Court held that sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any objective sought to be achieved. The artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution.
What IPC 376??
IPC 376 talks about the punishment of rape
Punishment for Rape
The Criminal Law Amendment Act, 2018 has enhanced the punishment for the offence of rape.
Section 376 (1) states that whoever commits rape shall be punished with a minimum sentence of ten years of imprisonment which may extend to imprisonment for life, and shall also be liable to fine.
Section 376 (2) enumerates 14 situations of rape such as when the accused is a police officer, or public servant, or member of armed forces etc. in which punishment shall not be less than ten years and which may extend to imprisonment for the remainder of that person’s natural life.
Section 376 (3) which was inserted by the Criminal Law Amendment Act, 2018 provides that whoever commits rape on a woman under sixteen years of age shall be punished with minimum imprisonment of twenty years but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.
It further states that fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim. Also that any fine imposed shall be paid to the victim.
Punishment for causing death or resulting in persistent vegetative state of victim (PVS):
Sec 376 (A) of IPC states that whoever while committing the offence of rape inflicts injury which causes death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with minimumimprisonment of twenty years but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death.
A persistent vegetative state where a person has lost his thinking abilities and awareness of his surroundings. The person has lost his higher brain functions, but other key functions such as breathing and circulation remain relatively intact.
Section 376 (AB) which was inserted by the Criminal Law Amendment Act, 2018 provides that whoever commits rape on a woman under twelve years of age shall be punished with minimum imprisonment of twenty years but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine or with death.
It further states that fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim. Also that any fine imposed shall be paid to the victim.This provision was inserted to curb the offence of rape on minor victims.
Sexual intercourse by husband upon his wife during separation:
Sec 376 (B) states that whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separationor otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.
Sexual intercourse by person in authority:
Sec 376 (C) states that whoever being
(a) in a position of authority or in a fiduciary relationship; or
(b) a public servant; or
(c) superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force, or a women’s or children’s institution; or
(d) on the management of a hospital or being on the staff of a hospital,
abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than five years, but which may extend to ten years, and shall also be liable to fine.
Sec 376 (D) states that where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life, and with fine.
The Criminal Law Amendment Act, 2018 has inserted two new provisions relating to gang rape which are as follows:
Sec 376 (DA) states that where a woman under sixteen years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life.
Sec 376 (DB) states that where a woman under twelve years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine, or with death.
Punishment for repeat offenders:
Sec 376 (E) states that whoever has been previously convicted of an offence punishable under section 376 or section 376A or section 376AB or section 376D or section 376DA or section 376DB and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death.
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