Rape Under IPC | Law Notes | IPC NOTES FOR LLB

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THE OFFENCE OF RAPE UNDER IPC

Rape Under IPC

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.

INTRODUCTION

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.

Definition
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.

Ingredients

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
 y p
`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
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
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
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.

Gang rape:

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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