Author: Mehrul Arora
INTRODUCTION
Rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, rape tantamounts to a serious blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks.[1]
DEFINITION OF RAPE IN THE INDIAN PENAL CODE
Section 375 of the Indian Penal Code (hereinafter referred to as ‘IPC’) states that, “A man is said to commit “rape” if he –
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,
under the circumstances falling under any of the following seven descriptions: –
First. – Against her will.
Secondly. – Without her consent.
Thirdly. – With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt,
Fourthly. – With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly. – With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly. – With or without her consent, when she is under eighteen years of age.
Seventhly. – When she is unable to communicate consent.
Explanation 1. – For the purposes of this section, “vagina” shall also include labia majora.
Explanation 2. – Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1. – A medical procedure or intervention shall not constitute rape.
Exception 2. – Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
This section consists of the following Ingredients –
- Sexual Intercourse by a man with a woman.
- The sexual intercourse must fall under any of the seven descriptions mentioned in the abovementioned section.
- Sexual Intercourse by a man with a woman –
In the case of Sakshi and Ors. v. Union of India[2] the Petitioner submitted that the definition of the term rape as contained in the Code is extremely wide and takes within its sweep various forms of sexual offenses. Limiting the understanding of “rape” to abuse by penile/vaginal penetration only, runs contrary to the contemporary understanding of sexual abuse law and denies majority of women and children access to adequate redress in violation of Article 14 and 21 of the Constitution. Statistics and figures indicate that sexual abuse of children, particularly minor girl, children by means and manner other than penile/vaginal penetration is common and may take the form of penile/anal penetration, penile/oral penetration, finger/vaginal penetration or object/ vaginal penetration. And the court held that the suggestions made by the petitioner will advance the cause of justice and are in the larger interest of society and hoped that the Parliament will make appropriate legislation with all the promptness which it deserves.
- The sexual intercourse must fall under any of the seven descriptions mentioned in the abovementioned section –
- i) First clause – Against her will –
The expression ‘against her will’ would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition.[3]
- ii) Second clause – Without her consent –
Stroud’s Judicial Dictionary[4] defines consent as, “Every ‘consent’ to an act, involves a submission; but it by no means follows that a mere submission involves consent,”
In the case of Holman v. The Queen[5] it was held that there does not necessarily have to be complete willingness to constitute consent. A woman’s consent to intercourse may be hesitant, reluctant or grudging, but if she consciously permits it there is “consent.”
In the case of Tukaram and anr. v. State of Maharashtra[6], commonly known as the Mathura Rape Case, where a constable was accused of raping a girl at the police – station, the Supreme Court negatived the plea of passive submission in the view of the facts and circumstances of the case and acquitted the accused.
In the case of State of H.P. v. Mango Ram[7] it was held that submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.
In the case of Uday v. State of Karnataka[8] the apex court held –
“In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact”
Though will and consent often interlace and an act done against the will of the person can be said to be an act done without consent, the IPC categorises these two expressions under separate heads in order to be as comprehensive as possible.
iii) Third clause – 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 –
Consent of a woman to sexual intercourse obtained by putting her in fear of death or of hurt is no defence to an accused person for an offence under this section. Where a woman was willing to allow sexual intercourse with her for a price, the fact that the price offered was found to be fictitious would not vitiate the consent.[9]
iv) Fourth clause – 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 –
In the case of Bhupinder Singh v. Union Territory of Chandigarh[10], the Petitioner had married the accused and had started cohabitating with him. When the petitioner first became pregnant, the accused got the foetus aborted in 1991. In 1994 when she gets pregnant again, she meets her husband’s two friends who informs her that he was already married and had children from his first wife. She confronts her husband, who on the pretence of work, leaves her and does not turn up even when she gives birth to the child. A complaint is filed by the petitioner wherein she holds the accused guilty of rape as she had married the accused without the knowledge that he was already married and the consent of cohabitation was given under the same belief that the accused was her husband. Therefore, the Supreme Court refused to interfere with the order of conviction passed by the High Court.
v) Fifth clause – 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-
A woman suffering from somnambulism (sleep – walking) and epilepsy walked out of her home in sleep at 2 a.m. and reached a particular spot from where the five accused led her to a lodge and gang raped her. Injuries symptomatic to rape and all other symptoms were found to be there and the accused were guilty of rape as the woman was suffering from the abovementioned disease and was incapable of giving consent.[11]
Where the victim, a mentally challenged woman of 25 years of age was raped, and the evidence is corroborated by medical evidence, Court held that conviction u/s. 376 is proper.[12]
vi) Sixth clause – With or without her consent, when she is under eighteen years of age –
Through the Criminal Law (Amendment) Act, 2013, the age of consent was raised from 16 to 18 years and thus, sexual intercourse with a woman, with or without her consent when she is below 18 years of age, amounts to rape.
Where the birth register showed age to be 14 years at the relevant time, but the medical opinion put it to be between 14 and 16 years, it was held that the birth register should be preferred. The books on medical jurisprudence carry it that medical opinion cannot be absolutely certain and that two years plus or minus error was possible.[13]
vii) Seventh clause – When she is unable to communicate consent –
This clause was added through the Criminal Law (Amendment) Act, 2013.
PUNISHMENT FOR RAPE
Punishment for rape has been provided for in Section 376 of IPC which is as follows –
1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
(2) Whoever, –
(a) being a police officer, commits rape –
(i) within the limits of the police station to which such police officer is appointed; or
(ii) in the premises of any station house; or
(iii) on a woman in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or
(b) being a public servant, commits rape on a woman in such public servant’s custody or in the custody of a public servant subordinate to such public servant; or
(c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or
(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution, commits rape on any inmate of such jail, remand home, place or institution; or
(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
(g) commits rape during communal or sectarian violence; or
(h) commits rape on a woman knowing her to be pregnant; or
(j) commits rape, on a woman incapable of giving consent; or
(k) being in a position of control or dominance over a woman, commits rape on such woman; or
(l) commits rape on a woman suffering from mental or physical disability; or
(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
(n) commits rape repeatedly on the same woman,
shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.
Explanation. – For the purposes of this sub-section, —
(a) “armed forces” means the naval, military and air forces and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government;
(b) “hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;
(c) “police officer” shall have the same meaning as assigned to the expression “police” under the Police Act, 1861 (5 of 1861);
(d) “women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or an institution called by any other name, which is established and maintained for the reception and care of women or children.
(3) Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this sub-section shall be paid to the victim.
In the case of Visveswaran v. State of T.N.[14] the victim was allegedly raped by a police constable in a hotel room. She could not identify him and no test identification parade was held. The Supreme Court held that the identity was established by the fact that the accused was arrested from the hotel as well as because of the fact that the room was booked by him. Furthermore, he was not able to explain his whereabouts at the time of the offence. The Court further observed that the Courts have to adopt a different approach in such a case and it should not get swayed by minor contradictions or discrepancies and defective investigation.
The accused attempted to commit rape on a girl of tender age of 12 years and he himself had a daughter of 8 years old at that time. He was sentenced to five years of rigorous imprisonment and a fine of Rs. 40,000 was imposed on him.[15]
CONCLUSION
Rape is not only an offence against the person of a woman, rather it is a crime against the entire society.[16] Rape is a heinous sexual offence and it violates the fundamental right of the victim as well, that is, Article 21 of the Constitution of India – Protection of Life and Personal Liberty and therefore, such cases should be dealt by the Courts sternly and severely. It was also held in the case of Bodhisattwa Gautam v. Miss Subhra Chakraborty[17] that rape destroys the entire psychology of a woman and pushed her into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim’s most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21.
[1] Deepak Gulati v. State of Haryana, AIR 2013 SC 2017.
[2] AIR 2004 SC 3566.
[3] State of Uttar Pradesh v. Chhotey Lal, (2011) 2 SCC 550.
[4] Fourth Edition, Volume 1 (1971), pg 555.
[5] [1970] W.A.R. 2.
[6] AIR 1979 SC 185.
[7] AIR 2000 SC 2798.
[8] AIR 2003 SC 1639.
[9] Motiram, (1954) Nag 222.
[10] (2008) 3 Cri.LJ 3546 (SC).
[11] Kanhimon v. State of Kerala, 1988 CrLJ 493 (Ker).
[12] Jhaduram Sahu v. State of Chhattisgarh, 2013 CrLJ 1722 (Chh).
[13] State of Gujarat v. Inayathusen, 1996 CrLJ 3225 (Guj).
[14] AIR 2003 SC 2471.
[15] State of Maharashtra v. Rajendra Jawanmal Gandhi, AIR 1997 SC 3986.
[16] State of Punjab v. Ramdev Singh, AIR 2004 SC 1290.
[17] AIR 1996 SC 922.
About the Author: Mehrul is a fourth-year law student at Law College Dehradun, Uttranchal University.
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