____________ASSIGNMENT______________

LAW OF CRIMES
______________INDIAN PENAL CODE____________

Annanya Singh
A3256121144
LL.B (section A)
SEXUAL OFFENCES UNDER IPC
The category sexual offences are dealt with in IPC in section 375 to 377.
Section 375 explains what is rape and provides punishment for the same. Rape
is generally originated from the Latin term “rapio” meaning “to seize”. So, in
the literal sense, it is meant to be a forceful seizure. It means “the ravishment
of a woman against her will or without her consent or with her consent
obtained by force, fear or fraud or the carnal knowledge of a woman by force
against her will”.
But in the section, it defines as to what acts of a man amounts to rape and
circumstances under which the forceful ravishment is considered as rape.
The punishment given in the section has undergone many changes due to
amendments made after the incidents of custodial rape Tukaram v. State of
Maharashtra (AIR 1979 SC 185) and gang rape Mukesh & Anrs v. State (NCT of
Delhi) & Ors, ((2017) 6 SCC 1) which horrified the general masses.
Further, the rape incidents of minors have also called for severe punishments
and changes in the relevant rape laws.

AMENDMENTS MADE TO RAPE LAWS: SERIES OF INCIDENTS

LEAD TO THESE CHANGES
In the first case, i.e., “Custodial Rape” case also known as “Mathura Rape”
case, a girl named Mathura who was an orphan along with her brother came to
the police station to give statement for recording was asked to stay back in the
lock-up alone. Later on, was raped by one officer in the police station while the
other could not rape due to intoxication and had committed sexual
molestation. The trial court initially acquitted the accused as they stated that
the victim gave her consent for the incident to take place. The Bombay high
court ruled out the trial court judgement and held the accused convict for rape
and the other one for molesting.
The high court reasoned that the girl never consented as there is difference
between “passive submission” and “consent”, here the girl was subject to fear
which made her submit her body but did not consent with free will. But the
supreme court was of narrow opinion about the same and held that the victim
was not subject to fear as her relatives were waiting outside the station which
shows that she was not passively submissive and labelled it as “tissue of
lies”. Thus, it acquitted both.
Aggrieved by the above judgement there were amendments made to nullify
the supreme court judgement. As a result, the changes were made to IPC and
section 376A to 376D added to it and section 114A was added to the Indian
Evidence Act.

In the latter case, i.e., Gang Rape case, a young woman was gang-raped in
Delhi in a private moving bus. The victim was brutally raped, and unnatural
offences were committed on her which shook the public and enraged the
general masses. There was a committee formed by Late Justice JS Verma, to
make relevant amendments to ensure harsh punishments and speedy justice.
Many recommendations made by the report of this committee took a
legislative form in the 2013 amendment act.

Further, the sections 376AB, 376DA, 376DB were inserted in the Penal code of
India, for providing harsh punishments to criminals who rape a minor, this was
an impact of increasing cases of minor’s rape.

RAPE: Section 375

A man is said to commit “rape” if he –
1. 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
2. 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
3. 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
4. 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
 • Without her consent
• 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
• 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
• 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
• With or without her consent, when she is under eighteen years of age
• 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}

TWO EXCEPTIONS: -
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”.
ESSENTIALS
There must be “sexual intercourse” in the manner specified in section 375
from (a) to (d) and under given circumstances, “by man upon a woman.”
• It must be “against her will.”
• Without her consent.
• Consent obtained by the fear of death or hurt.
• Consent is given under misconception, that a man to be her husband
who has the knowledge that he is not her husband.
• Consent is given in a state of unsoundness of mind or intoxication or
under circumstances when she is unable to understand the nature and
consequences of her consent.
• When the woman is under eighteen years of age – with or without
consent.
• When she is unable to communicate consent.
The above are the essentials of the offence under section 375.

SEXUAL INTERCOURSE: WHAT AMOUNTS TO RAPE?

The section says that penetration of the penis into the vagina or urethra or
anus of a woman or making her do so with any other person can be “to any
extent”. This phrase has made the term penetration to be interpreted as wider
ones, including even slightly or partially.[14] Hence the penetration is not
required to be in-depth and is immaterial.[15] Here, the physical injuries to the
private part of the woman are not essential nor are the rapture of the hymen,
the mere fact of penetration is enough to hold a person guilty.
The same is with the insertion of an object. It is to be proved that there is
mere insertion and depth is not required to be proved as it says “to any
extent” to hold that rape has been committed.
In the case of rape, ejaculation is not necessary, and only penetration needs to
be proved. If ejaculation is proved, but with no penetration, then the case is
not considered to be rape but an attempt to commit rape. Thus, penetration
is to be proved to hold a person for commission of rape.
CIRCUMSTANCES: NON-CONSENSUAL SEXUAL INTERCOURSE

AGAINST HER WILL:

As we talk about consent, the section requires there to be consent, i.e.,
voluntary and consciously acceptance which is different from passive
submission. So, if a person said to have consent, it must be proved through
gestures done or non-verbal or verbal communication made. Mere submission
without any resistance does not amount to consent.
Resistance is immaterial if the victim has not voluntarily participated. It will
become a weighing factor when there are explicit acceptance and voluntary
participation in the sexual act. It can help the accused to get away with rape
charges provided consent is given prior to penetration. Further consent
obtained through fraud or consent was given due to misconception or
unsoundness of mind or intoxication are also not valid consent and are held in
detail subsequently.
Apart from the above, there is a “presumption of absence of consent” in case
of rape as per the evidence act in India. Hence when it is proved that the act of
sexual intercourse has been done, then the victim saying she has not
consented will remain the presumption without any need for proving the
statement regarding consent. If the presumption is rebutted by the defence
side, then the accused may not be guilty of rape.
If a woman is said to be unchaste or easy to virtue, even then it is not right to
force her for sexual intercourse. The moment she has opposed the sexual act it
is an act of rape.
As held in the case of State of Maharashtra v. Madhukar Narayan Mardikar–
“Even a woman of easy virtue is entitled to privacy and no one can invade her
privacy as and when he likes. So also, it is not open to any and every person to
violate her person as and when he wishes. She is entitled to protect her person
if there is an attempt to violate it against her wish. She is equally entitled to
the protection of law. Therefore, merely because she is a woman of easy
virtue, her evidence cannot be thrown overboard”.
So even though a woman is said to have sexual intercourse earlier that does
not mean she is not a victim of rape. Loss of her virginity does not mean the
accused of rape is free of any guilt. Even if a woman is of no-good character,
her consent does matter and if she does not consent to any sexual
intercourse then she is meant to be protected.

INVALID CONSENT:
The third and fourth scenarios in the section deal with consent which is invalid.
These are the circumstances where the victim gives her consent but not a valid
consent as per law. Like the “consent” which is “given under fear or
misconception”. Section 90 deals with the same-
“Section 90 Consent known to be given under fear or misconception— A
consent is not a consent as is intended by any section of this Code, if the
consent is given by a person under fear of injury, or under a misconception of
fact, and if the person doing the act knows, or has reason to believe, that the
consent was given in consequence of such fear or misconception”
{provided that the accused is aware of the fact that the victim is under
misconception and willingly conceals the fact from the victim}
It may be treated as consent obtained by fraud.
Further, when a person is under any fear other than the fear of death or of
hurt, then it will not be covered under clause 3 of this section. And if the
woman believes that she is married to the accused but not having any
misconception, then it is not covered under clause 4 of this section. But such
an act may be consent obtained by fraud and is still invalid consent.
It means to attract clause 4 of section 375, the woman must have a
misconception that she believed the accused to be another person, i.e., her
husband and consented for sexual intercourse. Other than those mentioned in
clause 4, there are various ways in which the consent is obtained by fraud
means and are considered as invalid as per the law.
WHO CAN GIVE CONSENT: LIMITATIONS TO PERSON GIVING
CONSENT?
In the clauses (5), (6) and (7) gives us the limitation as to who can give the
consent and who cannot.
The clauses tell that a person who is giving consent if is gives so due to
“unsoundness of mind” or in a state of “intoxication” or due to reason of
“administration of any stupefying or unwholesome substance” to the victim by
the accused or if she is under the age of 18 years old or by any other “person
who is unable to communicate the consent”.

In the case of Tulshidas Kanolkar v. State of Goa (AIR 2004 SC 978), the court
was dealing with a case where the accused has had sexual intercourse on
repeated occasions with a mentally challenged woman and was held to be
guilty of rape. The court held as-
“An act of helpless resignation in the face of inevitable compulsion,
quiescence, non-resistance or passive giving in when the faculty is either
clouded by fear or vitiated by duress or impaired due to mental retardation or
deficiency cannot be considered to be consent as understood in law. For
constituting consent, there must be exercise of intelligence based on the
knowledge of the significance and the moral effect of the act. A girl, whose
mental faculties are undeveloped, cannot be said in law to have suffered
sexual intercourses with consent”.

PUNISHMENT FOR RAPE: SECTION 376

(1) Whoever commits rape shall be punished by harsh imprisonment of either
sort for a term of not less than seven years, but which may extend to life
imprisonment, as well as a fine, save in the conditions provided for in sub-
section.
(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) Commits rape on any inmate of a jail, remand home, or other place of
confinement created by or under any law currently in effect, or of a women’s
or children’s institution, while serving on the management or staff 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 by rigorous imprisonment for a duration of not less than 10
years, but which may be extended to life imprisonment, which means
imprisonment for the rest of that person’s natural life, as well as a fine.
CLASSIFICATION OF OFFENCE:
• 376A- Punishment for causing death or resulting in persistent vegetative
state of victim.
Whoever commits an offence punishable under sub-section (1) or (2) of section
376 and inflicts an injury on a woman that causes her death or puts her in a
persistent vegetative state will be punished with rigorous imprisonment for a
term not less than twenty years, but not more than life, which shall mean
imprisonment for the remainder of that person’s natural life, or with death.
• 376AB- Punishment for rape on woman under twelve years of age.
Whoever commits rape on a woman under the age of twelve years must be
punished by rigorous imprisonment for a duration of not less than twenty
years, but which may extend to life imprisonment, which means imprisonment
for the rest of that person’s natural life, as well as a fine or death: Provided,
however, that such a fine is just and reasonable in order to cover the victim’s
medical expenditures and rehabilitation: Furthermore, any payment imposed
pursuant to this clause must be remitted to the victim.
• 376B- Sexual intercourse by husband upon his wife during separation.
Whoever has sexual intercourse with his own wife when they are living
separately, whether under a decree of separation or not, without her
agreement, will be punished by imprisonment of either kind for a time of not
less than two years but not more than seven years, as well as a fine.
Explanation “Sexual intercourse” in this section refers to any of the activities
listed in clauses (a) through (d) of section 375.
• 376C- Sexual intercourse by person in authority.
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 his position or fiduciary relationship to induce or seduce any woman in
his custody, under his charge, or present in the premises to have sexual
intercourse with him, such sexual intercourse not amounting to rape, shall be
punished with rigorous imprisonment of either description for a term of not
less than five years, but not more than ten years, a fine of not less than five
thousand dollars, a fine of not more than ten thousand dollars, a fine of not
more than ten thousand dollars.
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 3-
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.
• 376D- Gang rape.
When a woman is raped by one or more people acting as a group or with a
common goal, each of them is guilty of rape and is sentenced to a term of
imprisonment of not less than twenty years, but not less than life, which
means they will be imprisoned for the rest of their natural lives.
Provided, however, that such a fine is just and reasonable in order to cover the
victim’s medical expenditures and rehabilitation:
Furthermore, any payment imposed pursuant to this clause must be remitted
to the victim.
• 376DA– Punishment for gang rape on woman under sixteen years of age.
When a woman under the age of sixteen is raped by one or more people acting
as a group or for a common purpose, each of those people is guilty of rape and
is sentenced to life in prison and a fine of:
Provided, however, that such a fine is just and reasonable in order to cover the
victim’s medical expenditures and rehabilitation:
Furthermore, any payment imposed pursuant to this clause must be remitted
to the victim.
• 376DB- Punishment for gang rape on woman under twelve years of age.
When a woman under the age of twelve is raped by one or more persons
acting as a group or in furtherance of a common intention, each of those
persons is deemed to have committed the crime of rape and is punished with
life imprisonment, which means imprisonment for the rest of that person’s
natural life, as well as a fine, or death:
Provided, however, that such a fine is just and reasonable in order to cover the
victim’s medical expenditures and rehabilitation:
Furthermore, any payment imposed pursuant to this clause must be remitted
to the victim.
• 376E- Punishment for repeat offenders.
Whoever has previously been convicted of an offence punishable under
section 376, section 376A, or section 376D and is later convicted of an offence
punishable under any of the said provisions will be punished with life
imprisonment or death

CASE STUDIES:
DELHI GANG RAPE CASE: NIRBHAYA
This case paved the way for amendments in rape laws for providing severe
punishment for the offenders. This case which occurred in the year 2012, was
considered as the rarest of the rare case as a young woman was gang-raped by
five people in a private bus, while she was returning to home at night post 9.
Due to this incident, the victim who was subject to gang rape as well as
unnatural offence, had undergone multiple organ failure, serious damages
caused to her private parts as well as her other parts of the body and insertion
of rod into the private parts of the body. This shocked the general masses as
the heinous crime committed by the criminals causing the death of the victim
were seen as a danger to society.[65]

In the case of Mukesh & Anrs v. State (NCT of Delhi) & Ors (2017) 6 SCC 1, the
accused who were punished with the death penalty by the trial court which
was upheld by the high court, has appealed to the supreme court. The
supreme court studied the facts and circumstances and relying upon the dying
declarations given by the victim before her death, had affirmed the death
penalty and opined that “where a crime is committed with extreme brutality
and the collective conscience of the society is shocked, courts must award
death penalty”.
There were many review petitions filed by the accused but the supreme court
at the end finalised their execution. In the year 2020, they were executed to
death, providing justice to the victim’s family and society.
But this case has not only led to awareness in the society but also many
amendments to the rape laws through criminal law amendment act 2013, also
known as Nirbhaya Act. Leading to additions in the category of the sexual
offence, i.e., section 375, 376, 376A, 376B, 376C, 376D and 376E in the Indian
penal code. Further section 114A of the Indian Evidence Act was amended as
per this act.

RAPE OF MINOR - KATHUA RAPE CASE

In the year 2018, there was a rape case of 8-year-old minor being abducted,
raped and murdered in Kathua, J&K. She was found to have been gang-raped
and was murdered. The case led to hue and cry in public. “The Protection of
Children from Sexual Offences Act (POCSO)” was amended and severe
punishments were imposed. Three accused held for rape and punished with
life imprisonment and a fine of one lakh, other three accused were held for
destroying evidence and awarded five years imprisonment.
These were the two major incidents which led to alterations and additions in
the rape laws and POCSO act. The minors too needed much protection and
care hence led to the amendment 2018, which added the above sections in the
category of “Sexual Offences” in the Penal Code of India.

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