RAPE A NIGHTMARE FOR EVERY CIVILIZED PERSON IN THE SOCIETY

THIS ARTICLE WAS WRITTEN BY HARSHITA PUNJABI, A STUDENT OF RAJIV GANDHI NATIONAL UNIVERSITY OF LAW.

INTRODUCTION

The dictionary meaning of word rape is “the ravishing or violation of a woman.” Black’s Law Dictionary defines rape as” the unlawful carnal knowledge of a woman by a man forcibly and against her will. Referring to the pitiable condition of women in society Mr. Justice S. Ahmad observed that “unfortunately, a woman in our country, belongs to a class or group of society who are in a disadvantaged position on account of several social barriers and impediments and have therefore, been victims of tyranny at the hands of men with whom they, unfortunately, under the Constitution “enjoy, equal status”. “Women also have the right to life and liberty; they also have the right to be respected and treated as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right to lead an honorable and peaceful life”.

Rape is a crime against basic human rights and is also violative of the victim’s most cherished of the fundamental rights, normally, the right to life contained in Article 21.

As observed by Justice Arjit Pasayat: ” While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.”

Justice Krishna Iyer has observed in a very famous case of Rafiq v. State : “A murderer kills the body but a rapist kills the soul.”

In its report Crime in India — 2007, the NCRB noted that offenders were known to the victims in as many as 19,188 cases (92.5 per cent). That included 6,902 incidents in which neighbours were involved. Parents or close family members were involved in 405 cases while in 1,448 cases relatives were involved. “Everywhere in this country, over 90 per cent of the victims are raped by person known to them,” a senior police official said.

As far as the Indian Penal Law is concerned, the definition of Rape is contained in Section 375 of the Indian Penal Code and the punishment is prescribed in Section 376 of the code.

This section contains the following ingredients –

Sexual intercourse by a man with a woman

The sexual intercourse must be under circumstances falling under seven clauses of Section 375

As per Section 375 of Indian Penal Code, 1860, A man is said to commit “rape” if he has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :

Firstly, 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 he is another man to whom she is or believes 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 such unwholesome substance, she is unable to understand nature and consequences to which she gives consent.

Sixthly, With or without consent, when she is under sixteen years of age.

Explanation – Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception – Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

AGE OF CONSENT- The age of consent in India is 18 years old. The age of consent is the minimum age at which an individual is considered legally old enough to consent to participate in sexual activity. The Protection of Children against Sexual Offences Act, 2012 aims to define various offences against the minor/children to provide penalties to them.  Before this Act was passed, the age of consent was 16 years of age.

A very important case that led to definite amendments in the section is Sakshi v. Union of India[1] the Supreme Court held that by a process of judicial interpretation the provision of Section 375, Indian Penal Code cannot be altered so as to include all forms of penetration such as penile/vaginal penetration, oral, anal, finger and object within its ambit. The definition of rape in the Code is restricted only to penile-vaginal penetration

DEFINITION OF RAPE IN OTHER NATIONS-

The definition of Rape laid down in Sexual Offences Act, 2003 of England includes acts of intentional penetration of the vagina, anus or mouth of the complainant, without their consent . The definition is very wide, it includes within its ambit all sorts of forced sexual intercourse whether effectuated by penetration or otherwise. Thus, sexual abuse through insertion of inanimate objects in the vagina, anus or mouth is also treated as rape. Another significant feature of this definition is that it conceives rape as a gender neutral offence, which is to say that rape can be committed on members of either of the two genders and by women also.

Section 5 of the Criminal Law Consolidated Act of Australia includes anal and oral sex without the consent, in the definition of rape.

As per Section 3 of the Sexual Offences Act of South Africa rape is defined as: Any person who unlawfully and intentionally commits an act of sexual penetration with a complainant, without the consent of the complainant, is guilty of the offence of rape.

CIRCUMSTANCES UNDER WHICH SEXUAL INTERCOURSE AMOUNTS TO RAPE

AGAINST HER WILL- The expression ‘against her will’ means that the act is done in spite of opposition on the part of woman. An element of force or compulsion is present. It imports that the victim has been overpowered by the man and shows the use of coercion against her.

State of Punjab v. Gurmit Singh[2]a young girl below the age of 16 years was abducted from 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. Due to the threat she kept quite. After repeatedly committing sexual assault on her, they left her the next morning near the place from where she had been abducted. Surprisingly, the additional judge, Ludhiana acquitted all the accused on both counts of abduction and rape disbelieving the version of prosecutrix regarding rape and because of delay in FIR. the Apex Court held that the sexual intercourse was against her will for which the accused are liable for committing rape under section 376, IPC.

In addition to this, the Apex Court laid down the following guidelines for trial in such cases:

  • 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 camera and 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-examination in case of rape trial.

        WITHOUT HER CONSENT-This clause operates where a woman is insensible whether because of influence of drugs or any other cause or is so imbecile that incapable of giving any rational consent. Consent of the woman must have been obtained prior to the act. It would be no defence that woman consented after the act.[3]

Consent obtained by misrepresentation, fraud or under mistake is no consent. In Queen v. Flattery[4]the accused was charged for rape upon a 19-year-old girl. The girl who had ill health and was subject to fits, visited the accused’s clinic along with her mother and sought his advice for treatment. The accused, after examining the girl, advised her to have a surgical operation, to which she consented, and under pretence of performing it, had sexual intercourse with the girl. It was held that the girl’s consent would not excuse the accused from conviction as it was given under a mistake of fact. There was a misconception as to the nature of the act and whatever consent was given by the girl was for the purposes of surgical operation and not for sexual intercourse.

Where a woman consents to sexual intercourse under the assumption of a promise to marry, the falsity of the promise doesn’t ipso facto vitiate consent. It depends on whether the accused’s promise was false from its inception or not. In Pradeep Kumar Verma v. State of Bihar[5]it was held that in case of a representation deliberately made by the accused with a view to elicit the assent of victim without having intention to marry her, will vitiate the consent given by the victim. It was also observed that if on the facts it is established that at the very inception of the making of the promise the accused did not really entertain the intention of marrying the victim and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of section 375 clause second. Such representation would only vitiate the consent.

CONSENT OBTAINED BY PUTTING THE WOMAN UNDER FEAR OF DEATH OR HURT IS NO CONSENT-Clause (3) to section 375 IPC asserts that consent of the woman in order to exonerate the accused of the charge of rape must be given freely and voluntarily without any fear of death or injury. In such a case the consent obtained will not be a valid consent. In Rafique v. State of U.P,[6] a middle aged Bal Sewika was raped by the aappellant when she was sleeping in a girls school. The next day she narrated the incident to Mukhya Sewika of the village and the appellant was convicted even in absence of injuries on the person of the victim. A criticised judgment of the Supreme Court in this regard was Tukaram v. State of Maharashtra[7]popularly known as Mathura rape case. Mathura, an 18-year-old Harijan orphan girl was called to the police station on an abduction report filed her brother at the police station- Desaui Ganj in Maharashtra on 26th March 1972. When they were about to leave the police station, Mathura was kept back at the police station in the late hours of the night by one of the constables, Ganpat, who was on duty. She was taken to a toilet and raped. After him, another constable Tukaram tried to rape her but being too heavily drunk, did not succeed. None of the two accused were held guilty for the following reasons:

  1. There were no marks of injury on her person which show that the whole affair was a peaceful one and that the story of stiff resistance having been put up by the girl is all false.
  2. The girl was not subject to any fear that must have led her to submit to the act.
  3. The girl was not alone when Ganpat ordered her to stay and she could have resisted and appealed to her brother. Her conduct in meekly following Ganpat and allowing him to have his way with her to the extent of satisfying his lust in full, made them feel that the consent in question was not a consent which could be brushed aside as passive submission.

This culminated in passing of the Criminal Law (Amendment) Act, 2013. It amended section 376 and introduced minimum mandatory punishments in rape cases. Besides it added four sections 376-A, 376-B, 376-C, 376-D. A new section 114-A was also inserted in Evidence Act.

CONSENT ACCORDED UNDER MISCONCEPTION THAT THE PERSON- 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 Bhupinder Singh v. Union Territory of Chandigarh[8], the complainant Manjit Kaur married the accused Bhupinder Singh, who she had met through work, in 1990 and started cohabiting with him in Chandigarh. She became pregnant but accused got the foetus aborted in 1991. When she was pregnant again in 1994, 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. Therefore, the Supreme Court refused to interfere with the order of conviction passed by the High Court.

CONSENT OBTIANED BY WOMAN OF UNSOUND WOMAN OR UNDER INFLUENCE OF INTOXICATION- Clause (5) of section 375 IPC was added vide the Criminal Law (Amendment) Act of 1983. The object of the new clause was 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 or intercourse with a defective.  Tulshidas Kanolkar v. State of Goa[9]the accused had sexual intercourse, repeatedly with a woman who was incapable of comprehending the vicissitudes of the act. Consequently the girl became pregnant. The additional session judge, holding the accused liable for rape under section 376 imposed a sentence of ten years of rigorous imprisonment along with fine of Rs. 10000. However the High Court in appeal reduced the sentence to seven years and the appellant went in appeal against his conviction. The Apex Court dismissed the appeal and held that for constituting consent there must be exercise of intelligence based on knowledge of the significance and moral effect of the act and criticised the High Court for reducing the sentence to seven years where it should not have interfered.

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 Apex Court in Harpal Singh[10]held that even if the girl of 14 is a willing party and invited the accused to have sexual intercourse with her, the accused would be liable for rape under this clause

In Mana Ramchandra Jadhav v. State of Maharashtra,[11] the prosecutrix left her mother’s house and joined the accused because her mother had turned down the proposal of her marriage with the accused on the ground that she was too young. While she was with the accused he had sexual intercourse with her against her will. The act of intercourse with the prosecutrix will be covered under this clause.

EXCEPTION- Sexual intercourse by a man with his wife under 15 years of age is rape whether, it has been done with or without her consent. 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 on account of matrimonial consent she has given.

Distinction between indecent attack and attempt to rape- An offence of indecent attack against a woman is not complete so long as it was the intention or knowledge of the accused that by such an act her character will be maligned. An indecent attack does not amount to an attempt of rape unless it is established that the accused was firmly determined to have his lust satisfied in spite of all obstacles.[12]

Distinction between indecent assault and attempt to commit rape- An offence of indecent assault on a woman cannot be complete unless there is intention or knowledge that the woman’s modesty will be outraged. An indecent assault on a woman does not amount to an attempt to commit rape, unless it is shown that was a determination in the accused to gratify his passion at all events, and in spite of all resistance.[13]

The Criminal Law (Amendment) Act, 1983 has besides the changes indicated at respective places made certain changes in section 327, Code of Criminal Procedure. The new provision says that notwithstanding anything contained in sub-section (1) the inquiry into and trial of rape or an offence under section 376, section 376-A, 376-B, 376-C,376-D or 376-E IPC shall be conducted in camera.

CORROBORATION OF COMPLAINANT’S STORY- The general rule in rape cases is that there may be corroboration of complainant’s story by independent evidence. That would depend on facts and circumstances of each case. It may be in form of injuries on private or other parts of body of complainant or that of accused, condition of her clothes or that of accused, seminal or blood stains on her body or body of accused or on place of incident. Prompt or delayed filing of F.I.R may be taken into account. A woman who has been raped is not an accomplice. A woman who was ravished is the victim of an outrage and if she consented there is no rape. In Krishnan Lal v. State[14], Justice Krishna Iyer has stated that a socially sensitized judge is better statutory armour against gender outrage than long clauses of complex section with all the protection writ into it. In State of H.P v. Raghubir Singh[15], a girl was alleged to have been raped by boy aged 16 years. On examination the doctor found her hymen ruptured and mud and blood stains on shawl on which she was lying. Doctor opined that accused was capable of sexual intercourse and girl was raped. There is no legal compulsion to look for corroboration of evidence of prosecutrix before recording an order of conviction. In the famous case of Bharwada Bhoginbhai Hirjibhai v. State[16], the Supreme Court emphasised that in the Indian setting, refusal to act on testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. On principle, evidence of victim of sexual assault stands at par with evidence of injured witness. If evidence is not unworthy of credence, there is no reason to insist on corroboration except from medical evidence where the same can be expected to be forthcoming.

Physical Incapacity- The Bombay High Court has held in the case of Gopala bin Rama v. Emp.[17] That a boy of thirteen to fifteen years of age who had the power of erection and probably that of emission as per medical report, could be convicted of attempt to commit rape as penetration is enough to constitute rape.

Inadequate evidence- In Narender Kumar v. State (N.C.T of Delhi)[18] the appellant allegedly raped the prosecutrix by the side of a road which was well electrified. The Supreme Court thus observed that her version that no body responded to her shouts was improbable. Her testimony that she did not know the accused was belied by other witness. Her evidence as to place of injuries was displaced by medical evidence. The deposition of prosecutrix did not inspire confidence and conviction was set aside. It was also held that in rape onus to prove is on prosecution. Prosecution has to prove its case beyond reasonable doubt and cannot take support of weakness of defence. Unchastity of victim is not determinative factor. However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and story projected by prosecutrix is found to be improbable the case becomes liable to be rejected.

In Rajinder v. State of Himachal Pradesh[19], the Supreme Court held that absence of injuries on the person of the prosecutrix does not lead to an inference that she consented to sexual intercourse as in the circumstances of the case, she could not be expected to put resistance.

Promise of marriage- In Uday v State of Karnataka[20], the accused and prosecutrix were deeply in love and promised to marry her on a later date. She was a nineteen year college girl and was aware of the fact that they belonged to different castes and their marriage proposal would be opposed by their families. Yet she started cohabiting with him consciously. The Supreme Court held that consent on her part could not be said to be under misconception of fact but because she also desire for it. Also false promise is not a fact under Indian Penal Code. The accused was acquitted of the charge of rape.

PUNISHMENT FOR RAPE

Section 376 provides for punishment for the offence of rape. As per first sub-section, except in cases covered under second sub-section, commits rape shall be punished with simple or rigorous imprisonment for a term which shall not be less than seven years but which may be for life or for a term extending up to ten years and shall also be liable to fine. According to sub-section (2)-

  • Whoever being a police officer, commits a rape
  1. Within the limits of police station to which such police officer is appointed;
  2. In the premises of any station house;
  • On a woman in such police officer’s custody or in custody of police officer subordinate to such police officer;
  • Being a public servant commits rape on woman in such public servant’s custody or in custody of public servant subordinate to such public servant; or
  • Being a member in armed forces deployed in an area by Central or State Government commits rape in such area; or
  • Being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of women’s or children’s institution, commits rape on inmate of such jail, remand home, place or institution;
  • Being on the management or on the staff of the hospital, commits rape on a woman in that hospital;
  • Being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on a woman in that hospital;
  • Commits rape on a woman during communal or sectarian violence;
  • Commits rape on a woman knowing her to be pregnant;
  • Commits rape on a woman when she is under sixteen years of age;
  • Commits rape, on a woman incapable of giving consent;
  • Being in position to control or dominance over a woman, commits rape on such woman;
  • Commits rape on woman suffering from mental or physical disability;
  • While committing rape causes grievous bodily or disfigures or endangers the life of a woman;
  • Commits rape repeatedly on the same woman, shall be punished be minimum mandatory sentence of 10 years

The Supreme Court has ruled in Balwant Singh v. State[21], that even if the prosecution has failed to prove the exact number of men who had raped the victim, those must be convicted against whom the charge has been proved beyond doubt. Where a sadhu having profound knowledge of the Vedanta philosophy had the surreptitious habit of having luring little girls into his mandir through a procuress and of raping them, and the truth came out after he raped 8 years old girl, it was held that the modus operandi of sadhu of performing kumaripuja, and in the garb of that raping them later on, necessitated a deterrent sentence of ten years rigorous imprisonment, and there was no ground of leniency.[22]

In State v. Shri Narayan[23] the accused who was a relation committed rape on a married rural woman. It was observed that delay in filing complaint was not sufficient to doubt the prosecution version. The prosecutrix and her husband had no strong reason to implicate the accused falsely. The witnesses were natural and their testimony was reliable and the same was corroborated by medical evidence. The acquittal of the accused was set aside. Where the victim of a rape was dead and as such not available for examination but the criminal act of the accused was proved by the other evidence.

Section 376–A dealing with punishment for causing death or resulting in persistent vegetative state of victim has been inserted by the Criminal Law (Amendment) Act, 2013. According to this, whoever commits an offence punishable under Section 376 (1) or 376 (2) of the Code and in course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in vegetative state, shall be punished with minimum mandatory sentence of 20 years rigorous punishment extendable up to life imprisonment, which shall mean imprisonment for the remainder of that person’s natural life, or with death.

The offence under this section is cognizable and non-bailable and is triable by Court of Session.

Section 376-B dealing with the offence of sexual intercourse by husband upon his wife during separation has been inserted by Criminal Law (Amendment) Act, 2013. It says that whoever has sexual intercourse with his own wife, who is living separately, whether under decree of separation or otherwise, without her consent, shall be punished with minimum mandatory sentence of 2 years simple or rigorous imprisonment extendable up to seven years, and shall also be liable to fine. The offence under this section is cognizable and bailable and is triable by Court of Session.

Section 376-C dealing with offence of sexual intercourse by a person in authority has been inserted by the Criminal Law (Amendment) Act, 2013. It says 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, (d) on the management of hospital or being on the staff of the 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 such intercourse not amounting to rape, shall be punished with minimum mandatory sentence of 5 years simple or rigorous imprisonment extending up to 10 years, and shall also be liable to fine.

Om Prakash Verma v. State of Madhya Pradesh[24] it was alleged that a teacher of a government school committed rape on a student. The Supreme Court held that though a teacher in a government school is a public servant but a student cannot be said to be in his custody. If a student and a teacher fall in love, the teacher cannot be said to have taken undue advantage of his position, moreso, when the offence is committed outside of school. Thus, conviction of teacher under this section is not proper.

The offence is cognizable and non-bailable and is triable by Court of Session.

Section 376-D dealing with the offence of gang rape was inserted by the Criminal Law (Amendment) Act, 2013. It says that where a woman is raped by one or more persons constituting a group or acting in furtherance of common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with minimum mandatory sentence of twenty years rigorous imprisonment extendable up to life imprisonment, that is imprisonment for remainder of the person’s natural life, and with fine, provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of victim, provided further that any fine imposed under this section shall be paid to the victim.

Om Prakash v. State of Haryana[25], is a case relating to gang rape. In this case accused alone at knife point kidnapped prosecutrix and appellant only provided space and cot and helped co-accused in wrongfully detaining prosecutrix. There was no evidence to show that factum of kidnapping as well as extent to commit rape was known to appellant. In view of statement of prosecutrix the act of kidnapping and actual commission of rape was completed by co-accused himself. There is no evidence that there was common concert or common intention or meeting of minds prior to commission of offence between the two accused which is necessary under section 376(2) (g)of the I.P.C. Therefore, conviction of accused under section 376(2)(g) was set aside. However conviction under 368 I.P.C was maintained. It was made clear that for offence under section 376(2) (g) the act has to be in the furtherance of common intention of each of the persons. This provision embodies a principle of joint liability and essence of that liability is existence of common intention and that common intention presupposes prior concert which may be determined from conduct of offenders which is revealed during course of action.

In Baldev Singh v. State of Punjab[26], an incident of gang rape had taken place 14 years ago. The accused and prosecutrix both were now married. The parties entered into compromise to finish the dispute. The Supreme Court reduced the sentence to 3 and half years imprisonment already undergone by each accused but fine was increased to 50000 each.

Section 376-E dealing with punishment for repeat offenders has been inserted by the Criminal Law (Amendment) Act, 2013. It says that whoever has been previously convicted of an offence punishable under Section 376 or Section 376-A or 376-D and is subsequently convicted of an offence punishable under any of 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. The minimum mandatory sentence under this section is life imprisonment, meaning the remaining period of his life, extendable up to death. The offence under this section is cognizable and non-bailable and is triable by Court of Session.

Redirection of Sentence- In State of M.P v. Babulal[27], it was held that in case of conviction of accused under Section 376 I.P.C for imposition of sentence less than minimum prescribed recording of adequate and special reasons is a sine qua non. The reason that the accused was illiterate agriculturist from rural area can neither be said to be special nor adequate for reducing sentence to the period already undergone which was only 2 months and 3 days. The Supreme Court further remarked that undeserved indulgence or liberal attitude in not awarding adequate sentence was not proper.

Conviction based on sole testimony of prosecutrix- In Rajinder v. State of H.P,[28] the prosecutrix aged about 18 years was staying in a village with her parents. The accused was laying pipelines near her residence. One day prosecutrix had some throat pain when contractor came to know about her illness and suggested to her mother that his cousin was doctor and he could show the girl to him. The accused then took her on his scooter and took her at several places instead of doctor and took her to lonely place and committed sexual intercourse. Holding the accused guilty of rape under Section 376, the Court observed that the victim in the circumstances cannot be expected to have put resistance and absence of injuries on person of prosecutrix does not lead to an inference that she consented for sexual intercourse.

Quantum of Punishment- It was held in State of Madhya Pradesh v. Munna Choubey[29], that both in cases of sub-sections (1) & (2) of Section 376 the Court has the discretion to impose a sentence of imprisonment  less than the prescribed minimum for adequate and special reasons. If the Court does not mention such reasons in the judgment there is no scope for awarding a sentence less than prescribed minimum. It is statutory requirement that the Court has to record adequate and special reasons in the judgment and not fanciful reasons which would permit the Court to impose a sentence less than prescribed minimum. What is adequate and special would depend upon several factors and no straight jacket formula can be indicated. This mandate regarding recording reasons for a departure from minimum prescribed sentence is equally applicable to High Court. The same can by no stretch of imagination be considered either adequate or special.

Punishment less than prescribed minimum- In State of M.P v. Basodi[30], it was observed that the social impact of crime whether it relates to offences against women, dacoity, kidnapping, treason and other offences involving moral turpitude which have impact on social order and public interest cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentence or taking too sympathetic a view or merely on account of lapse of time in respect of which such offence was committed will be result wise be counter-productive in the long run against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in sentencing system.

Attempt to commit Rape- In Koppula Venkat Rao v. State of Andhra Pradesh,[31] Supreme Court held that on consideration of evidence of prosecutrix it is clear that commission of rape hasnot been established. However, evidence is sufficient to prove that attempt to commit rape was made. It was held that in order to find accused guilty of an attempt to commit rape, court has to be satisfied that the accused when he laid hold of the prosecutrix, not only desired to gratify his passion upon her person, but that he intended to do so at all events and notwithstanding any resistance on her part. That being position conviction was altered from 376 I.P.C to section 376/511 I.P.C.

THE CRIMINAL LAW (AMENDMENT) ACT, 2013

The Act came into force on 3rd February, 2013 following the outrage of the entire nation behind the homicidal gang rape that took place in New Delhi on the night of 16th December 2012. It provides for amendment of Indian Penal Code, Indian Evidence Act, and Code of Criminal Procedure, 1973 on laws related to sexual offences.

The gang rape in Delhi took place on the night of 16th December 2012. The victim, a 23 year old physiotherapy intern took a ride home in a private bus that night, with her friend. There were six other people on the bus, including the driver.

The victim and her friend were beaten up when they raised their suspicions as to route of the bus to the destination. The woman was later raped by all the men while the bus was moving and her friend was beaten unconscious[32] After the beatings and rape, both the victims were thrown out of the moving bus by their perpetrators and left on the side of the road, partially clothed. Medical investigation of the woman suggested she was penetrated by a blunt object, probably a rod-like object that had caused extensive damage to the internal organs of the victim. Two blood-stained metal rods were retrieved from the bus on police inspection, which the medical staff later confirmed to be the object used for penetration that had caused serious injuries to the victim’s uterus, genitals and the abdomen.Within a day of the commission crime, arrests were made by the Delhi police in the case and all the six accused including a juvenile were arrested. There was a huge demand for speedy trial and immediate prosecution in the matter. However, during the trial, one of the accused, Ram Singh was found dead in his prison cell. The remaining accused were booked for rape, murder, kidnapping, destruction of evidence, and the attempted murder of the woman’s male companion under Sections 120-B, 365, 366, 307, 376 (2)(g), 377, 396, 302, 397, 201 and 412 of the Indian Penal Code, 1860.

The juvenile defendant was found guilty of rape and murder of the victim under the Juvenile Justice Act by the Juvenile Justice Board on the 31stAugust 2013 and was sentenced to three years imprisonment in a reform facility. The remaining four accused were found guilty of rape, murder, unnatural offences and destruction of evidence by the fast-track court. They were sentenced to death penalty by the court on 13th September 2013.

 There were protest movements nationally as well as internationally, all demanding stricter laws to check violence against women. For bringing desired changes in existing laws, Justice Verma Committee was constituted.

AMENDMENTS TO PROVISIONS OF IPC, 1860

The Criminal Law (Amendment) Act, 2013 made changes in existing provisions and new offences like, acid attack, sexual harassment, voyeurism, stalking have been incorporated into the Indian Penal Code.

Section 354A – Sexual harassment has been made a gender neutral offence whereas earlier, a man who makes unwelcome sexual advances, forcefully shows pornography or demands/requests sexual favours from a woman commits the offence of sexual harassment simpliciter under section 354A; this is punishable by imprisonment of up to three years. Making sexually coloured remarks also amounts to sexual harassment, which is punishable by imprisonment for up to one year.[33]

Section 354B – If a man assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked in any public place, he commits an offence under section 354B, which is punishable with imprisonment between three and seven years. This section deals with a very specific offence and adds to and supplements the provision dealing with the offence of outraging the modesty of a woman.[34]

Section 354D – Stalking has been made a specific offence under this new section. If a man stalks a woman, he may be punished with imprisonment of up to three years for the first time, and five years for the subsequent convictions. However, the offence is subject to certain exceptions like where a person can show that the acts done were in pursuance of some law, amounted to reasonable conduct or in order to prevention of some crime.[35]

Section 375 – Under the new section, a man is said to commit rape if there is:

  • Penetration of penis into vagina, urethra, mouth or anus of any person, or making any other person to do so with him or any other person;
  • Insertion of any object or any body part, not being penis, into vagina, urethra, mouth or anus of any person, or making any other person to do so with him or any other person;
  • Manipulation of any body part so as to cause penetration of vagina, urethra, mouth or anus or any body part of such person or makes the person to do so with him or any other person;
  • Application of mouth to the penis, vagina, anus, urethra of another person or makes such person to do so with him or any other person;
  • Lastly, touching the vagina, penis, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person.
  • The 2013 Act expands the definition of rape to include oral sex as well as the insertion of an object or any other body part into a woman’s vagina, urethra or anus.
  • The new amendment defines ‘consent’, to mean an unequivocal agreement to engage in a particular sexual act; clarifying further, that the absence of resistance will not imply consent. Non-consent is a key ingredient for commission of the offence of rape.
  • Section 376 (2) was expanded to included rape committed by a member of the armed forces deployed in an area by the Central or a State Government in such area.
  • Section 376 (2) was also expanded to consider rape of a woman below the age of 16 years as aggravated and hence enhanced punishment for it.
  • The judicial discretion available to impose a reduced sentence (lesser than the required minimum) was deleted by the Amendment.
  • A separate section 376 D was made for the offence of gang rape with a higher punishment.
  • The amendment made separate section for rape that caused death or persistent vegetative state of the victim under section 376 A.
  • Section 376 C was expanded to include the abusing of a position of authority or fiduciary relationship by certain persons to induce or seduce any woman in his custody or charge to have sexual intercourse with him.
  • The amendment also included a section 376E for repeated offenders and laid down stricter punishment for persons convicted under this section. Death penalty was also introduced in this section as the punishment along with life imprisonment without parole.
  • Earlier, section 376A (intercourse by a man with his wife) provided for a punishment of imprisonment for a term, which may extend to two years. After the 2013 amendment, punishment for sexual intercourse by a husband upon his wife during separation without her consent (section 376B, substituting section 376A) was increased to seven years, with a minimum punishment of two years.

LOOPHOLES IN THE ACT

One of the most notable omissions of the Act is its failure to criminalize marital rape—as recommended by the Verma Committee, The law fails to understand here is that a wife is a woman first of all. So, if being a wife puts her into a more vulnerable position as the husband could actually have intercourse without her consent.

The statute states mere penetration is sufficient to constitute rape. The word “penetration” is very obscure and indefinite. Ordinarily in the act of rape the “penetration” is made by the penal organ. Unfortunately, there are many gruesome instances where external objects have been inserted into the women’s organ.

Section 375, though being an exhaustive statute is limited to female population. Section 377 deals with “unnatural offences” but this statute again is very reserved. The act states;- Whoever voluntarily has carnal intercourse against the order of nature with any man, women or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine. This contains the word “voluntarily”. Therefore, it neither relates to sex without consent or a sexual assault. So if at all a man is sodomized without his consent what’s the remedy available to him. Moreover, the statute has the phrase, “carnal intercourse against the order of nature”; this phrase again limits the scope of this statute.

Sexual assault on children is again on the rise yet there is no exclusive enactment or statute to address such a heinous crime. Sexual abusers can be fathers, step-parents, uncles, neighbours, spiritual leaders, and camp counsellors. Currently, sexual assaults on children are dealt under section 375,376 and 377. The punishment for rape cannot be the same as the punishment for paedophilia but has to be more ardous.

The Per Vagina test has come-up as an anathema for Indian women and despite being a derogatory practice, has still not been abolished. There are a series of judicial observations which go against it. Additional Sessions Judge, Kamini Lau observed that: “The test is violative of the fundamental right to privacy of the victim……State action cannot be a threat to the constitutional rights of an individual. What has shocked my conscience is that this test is being carried-out in a routine manner on victims of sexual offences (over minors) by doctors.” Yet, the survivor’s testimony is supposed to be enough in a rape case and the forensic evidence is only secondary, this practice should be done away with.

MARITAL RAPE

Marital Rape refers to unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent. As per Section 375 of the Indian Penal Code (IPC), forced sex in marriages is considered as a crime only when the wife is below age 15. The law of our country does not admit a rape committed by a husband with his wife as a crime, While some women are not aware of it and believe that it is their conjugal duty to have intercourse with their husbands whenever they demand so without having the right to say no. Also, some might use it as a weapon to avenge their husbands even for small and petty fights between them. The remedies today available to a woman against marital rape include protection under The Domestic Violence Act, 2005 and Section 376B of IPC which states that a man can be jailed for 7 years if he rapes his wife during judicial separation. But both these laws are not sufficient enough to protect a woman against the monstrosity of her husband. Going by the stats till now, the Crime Index of India is at 46.59 (as of 2016, April)[36] and as per the Report of NCRB, crime rate against Women as of year ending 2014 is 56.3.[37]

 In one of the cases, the Court stated that the defense council was right in taking the defense the IPC does not recognize the concept of marital rape, and if the complainant were the wedded wife of the accused, the sexual intercourse would not constitute rape, even if it was by force[38]

There are three kinds[39] of marital rape which have been identified and recognized by legal jurists and experts.

  1. Force-Only Rape – in what is known as force-only rape, the husband uses only that amount of force that is required to subdue their wife. The assault takes place typically after the woman has refused to any sexual intercourse.
  2. Battering Rape – in cases of battering rapes, women face both sexual and physical violence in their relationship. Some are battered and beaten during the sexual intercourse, or in some cases, the sexual violence may follow the physical assault. In many cases, the husband first tries through violent method to subdue his wife and then coerce her to have a sexual intercourse willfully.
  3. Obsessive Rape – many women also experience sexual violence which is sadistic and obsessive in nature. These assaults often involve perverse sexual acts.

After the “Nirbhaya Rape Case”, the government of India introduced stringent and stricter laws to ensure the safety of women, but still, marital rape wasn’t given a status of a crime. Even when Section 375 is in question as regards to the exception that if a husband has sexual intercourse with his wife without her consent, who is not below the age of 15, it wouldn’t be considered as rape, the point to ponder here is why the right to give consent is curtailed after the girl achieves the age of 15.

Criminalization of marital rape was also suggested by the Verma Committee,[40] after the brutal case of Nirbhaya’s rape. the Law Commission in its 172 Report titled Review of Rape Laws and the Department Related Parliamentary Standing Committee on Home Affairs in its 167th Report examined the matter and did not recommend the criminalization of marital rape. Even though the Justice JS Verma Committee in its Report titled “Amendments to Criminal Law” recommended that the exception to marital rape be removed, it also pointed out that it is also important that the legal prohibition on marital rape is accompanied by changes in the attitude of prosecutors, police officers and those in society generally,  Thus merely deleting the exception 2 of Section 375 may not stop marital rape. Moral and social awareness plays a vital role in stopping such an act.

The time is right to give marital rape the status of rape which is recognized under Sec 375 of the IPC.

GROWING NUMBER OF CHILD RAPES IN INDIA

As per WHO, “child sexual abuse has been defined as the involvement of a child in sexual activity that he or she does not fully comprehend and is unable to give informed consent to, or for which the child is not developmentally prepared, or else that violate the laws or social taboos of society.” The term also includes a range of activities like “intercourse, attempted intercourse, oral-genital contact, fondling of genitals directly or through clothing, exhibitionism or exposing children to adult sexual activity or pornography, and the use of the child for prostitution or pornography”. The Protection of Children from Sexual Offences (POCSO) Act of 2012 defines ‘children’ as those aged below 18. It has specific provisions declaring that ‘penetrative sexual assault’ and ‘aggressive penetrative sexual assault’ against children below 18 is rape.

According to the NCRB data for 2016, incidents of rape of children have increased by over 82% compared to 2015. It is for the first time that such a sharp increase in sexual assaults on children has been registered. The highest rise has been registered in Uttar Pradesh, where figures have trebled. The NCRB data shows that while in 2015, 10,854 cases of rape under Section 376 of the IPC and under sections 4 and 6 of the Protection of Children against Sexual Offences (POCSO) were registered across the country, 2016 saw 19,765 such cases being registered. In addition, 8,904 cases were registered nationwide under the Prevention of Sexual Offences Against Children (POCSO) Act and 11,335 under the category “assault on women (girl child) with intent to outrage her modesty under Section 354 IPC  (which includes stalking, voyeurism, use of criminal force with an intent to disrobe, etc)”, according to the NCRB.

As per UNICEF data of India, Police recorded 19,765 cases of child rape in 2016. It is known that about nine of 10 rapes and sexual assaults are carried out by people known to the victim. That holds true in the case of children as well. As many as 86% of all rapes in 2014 were committed by a person known to the victim, according to the NCRB.

RECENT CASES OF 2017

A 10-year-old girl was found pregnant after being repeatedly raped by her stepfather in Haryana. A 45-year-old school owner was arrested for sexually exploiting his own daughter for the last 7 years in Ghaziabad. The man had also filmed the acts where he would force himself upon her and would beat the daughter brutally if she resisted him.

A 21-month-old baby girl was raped by a 40-year-old man from her neighborhood in Delhi’s Gandhi Nagar area. The man, a known to the girl’s father often allowed him to play with his baby. However, on this particular day, finding the baby alone, the man raped her for a hours until her father came home.

A 5-year-old girl deaf and dumb girl was raped by a 24-year-old man in Varanasi. The man, who was strolling at night, first tried to kidnap his neighbour (another minor) who was sleeping with her mother. Unable to sneak her out, he started his hunt for another target.

A woman in Ludhiana drugged her 16-year-old daughter so that her two other friends could take turns in raping her. While the duo raped the girl for the last 5 months, they even got her 3-month foetus aborted at a private hospital few weeks back.

CONCLUSION

In 2011, a total of 24,206 rape cases were registered in India, according to data released by the National Crime Records Bureau. A total of 34,651 rape cases were reported in India in 2015. Among these, in 33,098 cases the offenders were known to the victims, as per National Crime Records Bureau (NCRB). In 2016, India recorded 106 rapes a day, once again highlighting the continuing rise in crimes against women in the country despite a series of court rulings and toughening of laws to deal with the menace. A large number of those raped (2,116) were girls in the age-group of 0 to 12 years and in 36,859 (94.6%) of cases, offenders were known to the rape victims including neighbours, family members, relatives, husband/live-in partner, employer/co-worker etc. The national capital Delhi witnessed the most rape cases at 1,996 , followed by 712 in Mumbai, 354 in Pune and 330 in Jaipur.

The Criminal Justice system of India needs reconditioning on the rape law. The Criminal Law (Amendment) Act, 2013 has been known all over as one of the most concrete steps taken by the Indian government to curb violence against women. Major amendments by the Act in the Indian Penal Code, not only widen the ambit of certain offences but also recognises new offences like acid attacks which earlier lacked a specific provision and definition in the Code.

Despite its flaws, the Act bears a progressive insight to make an impact and fight a battle against violence against women. However, the Act by itself is not sufficient to redress and seek justice for violence against women. For this, the Government of India needs to make colossal investments in building necessary infrastructure to deal with the crimes supplemented by meaningful reforms in judiciary (building fast track women’s courts, more engagement of women lawyers, women doctors to examine victims) and modernisation of the police system across whole of India.

There are already ample laws prescribing deterrent punishment for offences against women. What is actually required is a concrete legislation, this was however, partially achieved through the passing of the Criminal Law (Amendment) Act, 2013; to infuse sensitivity, understanding and more significantly, the mindset among police, executives to implement the laws more in spirit than in letter. Only then deterrent punishment can be awarded in crimes against women.

REFERENCES

https://www.legalindia.com/rape-laws-in-india/

https://www.lawctopus.com/academike/section-375-analysis-of-provisions-relating-to-rape/#_ednref22

https://www.indiatoday.in/india/north/story/rape-and-sexual-offences-crime-and-punishment-in-india-124681-2012-12-18

https://www.lawctopus.com/academike/criminal-law-amendment/#_ednref22

https://blog.ipleaders.in/statutory-rape-laws-india/

https://www.legallyindia.com/views/entry/loopholes-in-rape-laws

Section 375- Definition of Rape

Article 21 of Indian Constitution- Protection of life and personal liberty

Article 14 of Indian Constitution- Equality before law

[1] 2004 Cr LJ 2881 (SC)

[2] AIR 1996 SC 1393

[3] Hawk, P.C.C. 16, S.7, p. 122

[4] Flattery, (1877) 2 Q.B.D. 410

[5] 2007 IV Cri LJ 4333(S.C)

[6] (1980) 4 S.C.C 262

[7] AIR 1979 SC 185

[8] (2008) 3 Cri. L.J 3546 (S.C)

[9] (2003) 8 SCC 590

[10] AIR 1981 SC 39

[11] 1984 Cri. L. J 852(Bom.)

[12] Shanker, (1881) 5 Bom. 403

[13] Shanker, (1881) 5 Bom. 403

[14] AIR 1980 SC 1252

[15] (1993) 2 S.C.C 22

[16] AIR 1983 SC 753

[17] Cr.C 865 (Bom.)

[18] 2012 Cr LJ 3033 (SC)

[19] 2009 Cr LJ 4133 (SC)

[20] 2013 Cr LJ 1539 (SC)

[21] AIR 1987 SC 1080

[22] Dilip v. State, 1987 Cr LJ 212 (MP)

[23] AIR 1992 SC 2004

[24] 2007 Cr LJ 1831 (SC)

[25] 2011 IV Cri L.J 4225 (S.C)

[26] 2011 Cr LJ 1921 (SC)

[27] 2008 I Cri L.J 714 (SC)

[28] (2009) 4 Cri. L.J 4133 (S.C)

[29] 2005 Cri L.J 913 (S.C)

[30] (2010) Cr. L.J 3305 (S.C)

[31] 2004 Cri. L.J 1804 (S.C)

[32] State v. Ram Singh & Ors

[33] http://grayscale.org.in/entries/general/simplifying-the-criminal-law-amendment-act-2013-%E2%80%93-ipc-part-i

[34] http://nlrd.org/resources-womens-rights/rape-laws/government-notifications-advisories-rape-laws/changed-legal-position-on-sexual-offences-understanding-criminal-law-amendment-ordinance-2013

[35] http://rostrumlegal.in/the-criminal-law-amendment-bill-2013-a-critical-analysis

[36] http://www.numbeo.com/crime/rankings_by_country.jsp

[37] http://ncrb.nic.in/StatPublications/CII/CII2014/chapters/Chapter%205.pdf

[38] The Life and Times of an Indian Homemaker, available at: https://indianhomemaker.wordpress.com/2012/12/04/why-is-forcible-sex-or-lack-of-consent-not-rape

[39] Gosselin, D.K., Heavy Hands — An Introduction to the Crimes of Domestic Violence (1st Edn., Prentice-Hall Inc., New Jersey, 2000)

[40] Ashish Mukherjee, Rape law ordinance, ndtv.com, Updated: February 02, 2013 13:48 IST

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