Rape – Meaning

The word rape which is derived from the Latin term rapio which means ‘to seize’. Thus rape literally means a forcible seizure. It signifies in common terminology, ‘as ravishment of a woman without her consent, by force, fear, or fraud’ or “the carnal knowledge of a woman by force against her will”. In other words, rape is a violation with a violence of the private person of a woman and outrage by all means. (Phul Singh vs State of Haryana, AIR 1980 SC 249)

The code in section 375, 376, and 376 A to 376 E has dealt with sexual offence and unnatural offences under Section 377 IPC. Section 375 defines rape and section 376 prescribes punishment for rape. Section 376 A makes husband liable to punishment for intercourse with his wife during separation and 376 B to section 376 D provide punishment for “custodial rape”.

Amendments made in Law of Rape vide Act 13 of 2013

Taking a serious note of the inadequacies of the law of rape manifested in a number of judgments of the apex court and its failure to safeguard the rights of the innocent victims against the heinous crime against humanity and public criticism, the parliament in 1983 extensively amended the law of rape so as to make the law more realistic. By the amendment of Act Section 375 and 376 IPC were extensively amended and certain more penal provisions were incorporated for punishing those who molested women under the custody or care. (Added vide Criminal Law (Amendment) Act 43 of 1983)

Besides substantive law procedural provisions under the law of Evidence and Criminal Procedure Code were also added to strengthen the law. Some of the important changes brought about by the Act 43 of 1983 and Act 13 of the 2013 and other provisions are listed below:-

  1. Consent of woman of unsound mind or under intoxication is not to be considered valid defence.
  2. Burden of Proof of innocence on accused – Section 114 A was inserted in The Indian Evidence Act, 1872 vide Criminal Law (Amendment) Act 43 of 1983.
  3. Prohibition of disclosure of the identity of the victim – Section 228A IPC added vide Criminal Law (Amendment) Act 43 of 1983.
  4. Persistent Vegetative State – A new section 376 A has been added vide Criminal Law (Amendment) Act 13 of 2013. When an injury caused to the victim results in death of the women or causes women to be in a persistent vegetative state, then the accused shall be liable for imprisonment for a term which cannot be less than 20 years or may extend to imprisonment of life or remainder of that persons natural life or till death.
  5. Trial in Camera – Section 327 CrPC 1973 has been amended vide Criminal Law (Amendment) Act 13 of 2013, to the effect that the inquiry into and trial of rape or an offence under section 376, section 376A, section 376B, section 376C or section 376D of the Indian Penal Code shall be conducted in camera.
  6. Custodial Rape – Section 376C, IPC comprise a group of sections that create a new category of offence, known as custodial rape which does not amount to rape because in such cases the consent of the victim is obtained under compelling circumstances. (Substituted by Criminal Law (Amendment) Act 13 of 2013)
  7. Intercourse with wife during judicial separation – Section 376 B IPC inserted vide Criminal Law (Amendment) Act 13 of 2013 makes sexual intercourse with one’s own wife without her consent under a decree of separation punishable, with a minimum of 2 years that extend to 7 years.
  8. Minimum punishment for Rape – This provision has been made more stringent vide Criminal Law (Amendment) Act 13 of 2013.
  9. Character assassination of prosecutrix prohibited – A ‘Proviso clause’ to section 146 of the Indian Evidence Act, 1872 inserted vide Criminal Law (Amendment) Act 13 of 2013 has disallowed to put questions about prosecutrix character in cross-examination.

Section 375 in The Indian Penal Code – Rape.

A man is said to commit “rape” if he—

(a) 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

(b) 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

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) 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—

First.—Against her will.

Secondly.—Without her consent.

Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.—With or without her consent, when she is under eighteen years of age.

Seventhly.—When she is unable to communicate consent.

Explanation 1.—For the purposes of this section, “vagina” shall also include labia majora.

Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.—A medical procedure or intervention shall not constitute rape.

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.

Essential Ingredients of Rape

The crux of the offence of rape under section 375, IPC is sexual intercourse by a man with a woman against her will and without her consent under any one of the six circumstances mentioned below.

  1. Against her will.
  2. Without her consent.
  3. With consent obtained by putting her or any other person in whom she is interested under fear of death or of hurt,
  4. With consent but given under misconception of fact that the man was her husband,
  5. Consent given by reason of unsoundness of mind, or under influence of intoxication or any stupefying or unwholesome substance,
  6. Women under eighteen with or without consent.
  7. When women is unable to communicate consent.

In order to bring home the charge of rape against a man, it is necessary to establish that the “sexual intercourse” complained of was either against the will or without her consent. Where the consent is obtained under the circumstances enumerated under clauses firstly to sixthly, the same would also amount to rape.

In Deelip Singh v. State of Bihar [(2005) 1 SCC 88 para 14] the Supreme Court observed that “though will and consent often interlace, an act done against the will of the person can be said to be an act done without consent, the Indian Penal Code categorizes these two expressions under separate heads in order to as comprehensive as possible.”

Case Laws

The absence of injury on male organ of accused where a prosecutrix is a minor girl suffering from pain due to ruptured hymen and bleeding vagina depicts same, minor contradictions in her statements they are not of much value. Also, the absence of any injury on male organ of accused is no valid ground for the innocence of accused, a conviction under section 375 IPC was held proper; Mohd. Zuber Noor Mohammed Changwadia vs State of Gujarat, 1999 Cr LJ 3419 (Guj).

Penetration

The mere absence of spermatozoa cannot cast a doubt on the correctness of the prosecution case; Prithi Chand vs State of Himachal Pradesh, AIR 1989 SC 702.

Rape or Consensual Sex

Intercourse under promise to marry constitutes rape only from initial stage accused had no intention to keep the promise. An accused can be convicted for rape only if the court reaches the conclusion that the intention of the accused was malafide, and that he had clandestine motives. Deepak Gulati vs State of Haryana, [AIR 2013 SC 2071]

Section 376 in The Indian Penal Code – Punishment for rape.

(1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.

(2) Whoever,—

(a) being a police officer, commits rape—

(i) within the limits of the police station to which such police officer is appointed; or

(ii) in the premises of any station house; or

(iii) on a woman in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or

(b) being a public servant, commits rape on a woman in such public servant’s custody or in the custody of a public servant subordinate to such public servant; or

(c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or

(d) being on the management or on the staff of a jail, remand home or other places of custody established by or under any law for the time being in force or of a women’s or children’s institution, commits rape on any inmate of such jail, remand home, place or institution; or

(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or

(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or

(g) commits rape during communal or sectarian violence; or

(h) commits rape on a woman knowing her to be pregnant; or

(i) commits rape on a woman when she is under sixteen years of age; or

(j) commits rape, on a woman incapable of giving consent; or

(k) being in a position of control or dominance over a woman, commits rape on such woman; or

(l) commits rape on a woman suffering from mental or physical disability; or

(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or

(n) commits rape repeatedly on the same woman,

shall be punished with rigorous imprisonment for a term which shall not be less than ten 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.

Explanation.—For the purposes of this sub-section,—

(a) “armed forces” means the naval, military and air forces and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government;

(b) “hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;

(c) “police officer” shall have the same meaning as assigned to the expression “police” under the Police Act, 1861 (5 of 1861);

(d) “women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or an institution called by any other name, which is established and maintained for the reception and care of women or children.

Section 376 (1) provides a minimum sentence of seven 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 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 or death.

The fourteen situation are:-

  1. By a police officer.
  2. By a public servant.
  3. By an armed force personnel.
  4. By the management or staff of a jail, remand home.
  5. By the management or staff of a hospital.
  6. By relative, guardian or teacher of a person.
  7. During communal or sectarian violence.
  8. On a pregnant women.
  9. On a woman under sixteen.
  10. On a women incapable of giving consent.
  11. Being in a position of control and dominance over a woman.
  12. On a woman suffering from mental or physical disability.
  13. While committing rape causes grievous harm or maims or disfigures or endangers the life of a woman.
  14. Commits rape repeatedly on the same women.

Section 376-A in The Indian Penal Code – Punishment for causing death or resulting in persistent vegetative state of victim.

Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of Section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than 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.

Section 376-B in The Indian Penal Code – Sexual intercourse by husband upon his wife during separation.

Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or 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.

Explanation.—In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of Section 375.

Section 376-C in The Indian Penal Code – Sexual intercourse by a person in authority.

Whoever, being—

  1. in a position of authority or in a fiduciary relationship; or
  2. a public servant; or
  3. superintendent or manager of a jail, remand home or other places of custody established by or under any law for the time being in force, or a women’s or children’s institution; or
  4. 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.

Explanation 1.—In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of Section 375.

Explanation 2.—For the purposes of this section, Explanation 1 to Section 375 shall also be applicable.

Explanation 3.—“Superintendent”, in relation to a jail, remand home or other place of custody or a women’s or children’s institution, includes a person holding any other office in such jail, remand home, place or institution by virtue of which such person can exercise any authority or control over its inmates.

Explanation 4.—The expressions “hospital” and “women’s or children’s institution” shall respectively have the same meaning as in Explanation to sub-section (2) of Section 376.

Section 376-D in The Indian Penal Code – Gang rape.

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:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this section shall be paid to the victim.

Section 376-E in The Indian Penal Code – Punishment for repeat offenders.

Whoever has been previously convicted of an offence punishable under Section 376 or Section 376-A or Section 376-D 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.’