The word rape is derived from the Latin term rapio, which mean ‘to seize’. Thus rape literally means a forcible seizure. It signifies in common terminology, “as the ravishment of a woman without her consent, by force, fear, or fraud” or “the carnal knowledge of a woman by force against her will.” In other words, rape is violation with violence of the private person of a woman.
In the Indian Penal Code, Section 375 defines rape.[1]
Justice Krishna Iyer in the case of Rafiq v. State of U.P made a remark that, ‘A murderer kills the body, but a rapist kills the soul’.
Amendments (Vide Act 13 of 2013)
After the Nirbhaya Delhi Gang Rape case, ‘The Criminal Law Amendment Act, 2013’ came in to force w.e.f 3rd of Feb, 2013. Now this case was recorded as ‘Rarest of Rare case’ in the history of Indian Judiciary case laws. By this amendment act, our legislators introduced some new sections and make some amendments in Indian Penal Code, Criminal Procedure Code, Indian Evidence Act and Protection of children from sexual offences act.[2]
Some of the important changes brought about by the Act 43 of 1983 and Act 13 of the 2013 and other provisions are listed below:-
- Consent of woman of unsound mind or under intoxication is not to be considered valid defence.
- Burden of Proof of innocence onaccused – Section 114A was inserted in The Indian Evidence Act, 1872 vide Criminal Law (Amendment) Act 43 of 1983.
- Prohibition of disclosure of the identity of the victim– Section 228A IPC added vide Criminal Law (Amendment) Act 43 of 1983.
- Persistent Vegetative State– A new section 376 A has been added vide Criminal Law (Amendment) Act 13 of 2013. When an injury caused to the victim results in death of the women or causes women to be in a persistent vegetative state, then the accused shall be liable for imprisonment for a term which cannot be less than 20 years or may extend to imprisonment of life or remainder of that persons natural life or till death.
- Trial in Camera– Section 327 CrPC,1973 has been amended vide Criminal Law (Amendment) Act 13 of 2013, to the effect that the inquiry into and trial of rape or an offence under section 376, section 376A, section 376B, section 376C or section 376D of the Indian Penal Code shall be conducted in camera.
- Custodial Rape– Section 376C, IPC comprise a group of sections that create a new category of offence, known as custodial rape which does not amount to rape because in such cases the consent of the victim is obtained under compelling circumstances. (Substituted by Criminal Law (Amendment) Act 13 of 2013)
- Intercourse with wife during judicial separation– Section 376 B IPC inserted vide Criminal Law (Amendment) Act 13 of 2013 makes sexual intercourse with one’s own wife without her consent under a decree of separation punishable, with a minimum of 2 years that extend to 7 years.
- Minimum punishment for Rape– This provision has been made more stringent vide Criminal Law (Amendment) Act 13 of 2013.
- Character assassination of prosecutrix prohibited– A ‘Proviso clause’ to section 146 of the Indian Evidence Act, 1872 inserted vide Criminal Law (Amendment) Act 13 of 2013 has disallowed to put questions about prosecutrix character in cross-examination.
Definition of rape (After amendment of Sec 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 the seven descriptions.[3]
Analysis of the definition
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.
A man is guilty of rape if he commits sexual intercourse with a woman either against her will or without her consent as enumerated under clauses firstly to seventhly under section 375.
Essential Ingredients of Rape
The crux of the offence of rape under section 375, IPC is sexual intercourse by a man with a woman against her will and without her consent under any one of the seven circumstances mentioned below.
- Against her will.
- Without her consent.
- With consent obtained by putting her or any other person in whom she is interested in fear of death or of hurt,
- With consent but given under the misconception of fact that the man was her husband,
- Consent given by reason of unsoundness of mind, or under influence of intoxication or any stupefying or unwholesome substance,
- Women under eighteen with or without consent.
- When women is unable to communicate consent.
In order to bring home the charge of rape against a man, it is necessary to establish that the ‘sexual intercourse’ complained of was either against the will or without her consent. Where the consent is obtained under the circumstances enumerated under clauses firstly to seventhly, the same would also amount to rape.
In Deelip Singh vs. State of Bihar[5], the Supreme Court observed that “though will and consent often interlace, an act done against the will of the person can be said to be an act done without consent, the Indian Penal Code categorizes these two expressions under separate heads in order to as comprehensive as possible.”
Case Laws
The absence of injury on male organ of accused where a prosecutrix is a minor girl suffering from pain due to ruptured hymen and bleeding vagina depicts same, minor contradictions in her statements they are not of much value. Also, the absence of any injury on male organ of accused is no valid ground for the innocence of accused, a conviction under section 375 IPC was held proper; Mohd. Zuber Noor Mohammed Changwadia vs State of Gujarat.[6]
Penetration
The mere absence of spermatozoa cannot cast a doubt on the correctness of the prosecution case Prithi Chand vs State of Himachal Pradesh.[7]
Rape or Consensual Sex
Intercourse under promise to marry constitutes rape only from initial stage accused had no intention to keep the promise. An accused can be convicted for rape only if the court reaches the conclusion that the intention of the accused was malafide, and that he had clandestine motives. Deepak Gulati vs State of Haryana.[8]
Exception to Section 375
‘Exception 2- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under sixteen years of age, is not sexual assault.’
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 on account of the matrimonial consent that she has given.
In Bishnudayal vs. State of Bihar[9], where the prosecutrix, a girl of 13 or 14, who was sent by her father to accompany the relatives of his elder daughter’s husband to look after her elder sister for some time, was forcibly ‘married’ to the appellant and had sexual intercourse with her, the accused was held liable for rape under section 376.
However, under section 376 B, IPC sexual intercourse with one’s own wife without her consent under a decree of judicial separation is punishable by 2 to 7 years imprisonment.
Punishment of rape [10]
It states that if the rape is committed by persons listed below, they shall be punished with rigorous punishment of not less than 10 years, but can 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.
- Police officer within the limits of the police station.
- A police officer in the premises of any station house.
- A police officer on a woman in the police officer’s custody.
- Public servant on a woman’s in his custody.
- Member of the armed forces.
- Any person in the management of the jail, remand home etc. on inmate of such place.
- Staff/management of a hospital on a woman in that hospital.
- By a person who is in a position trust or authority or control or dominance towards a woman on such woman.
- During communal or sectarian violence.
- On a pregnant woman
- On a woman less than 16 years of age
- On a woman incapable of giving consent
- On a mentally or physically disabled woman
- Who causes grievous bodily harms or endangers the life of a woman.
- Who commits rape repeatedly on the same woman
If any other person commits rape on any woman, he shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.
Section 376-A of the IPC – Punishment for causing death or resulting in persistent vegetative state of victim
It says if a person commits an offence which is punishable under section 376 which causes the death of the women or causes the women to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than 20 years, but may extend to imprisonment for life or with death.
Section 376-B of the IPC – Sexual intercourse by husband upon his wife during separation
Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.
Explanation.—In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of Section 375.
Section 376-C of the IPC– Sexual intercourse by a person in authority
Whoever, being—
1. in a position of authority or in a fiduciary relationship; or
2. a public servant; or
3. superintendent or manager of a jail, remand home or other places of custody established by or under any law for the time being in force, or a women’s or children’s institution; or
4. on the management of a hospital or being on the staff of a hospital,
abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than five years, but which may extend to ten years, and shall also be liable to fine.
Section 376-D of the IPC– Gang rape
It prescribes punishment for gang rape and says where a woman is raped by a group of persons, then they shall be punishable with rigorous punishment of not less than 20 years, but may extend to life imprisonment, and with fine.
Note: Such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim. Also, any fine imposed under this section shall be paid to the victim.
Section 376-E of the IPC– Punishment for repeat offenders
Whoever has been previously convicted of an offence punishable under Section 376 or Section 376-A or Section 376-D and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death.’ [11]
Punishments Across the Globe [12]
Let us look at the punishments for rape convicts in different countries:
Saudi Arabia:
Being an Islamic country, the legal system of Saudi Arabia is based on Sharia – Islamic law. The punishment for rape, or for that matter any other crime like murder, drug trafficking, sodomy, robbery, and apostasy is public beheading. It is said that while beheading, the victim is given a sedative. This is done in a public place where the victim is made to kneel down facing Mecca and his head is beheaded with a single stroke by the police.
China:
In China too, strict punishment is given to rapists. Rape is a brutal crime and a death penalty is declared once the rapist is convicted. This is done by firing a single bullet at the spinal cord joining the neck. Another punishment given to the rapists in China is castration. The same punishment is given for other heinous crimes too. It is worth noting that the court proceedings are very quick.
North Korea:
In North Korea too, there is no leniency when it comes to punishing a rapist. The offender is either shot in his head or vital organs by a firing squad. This kills the convict relatively quickly and provides instant justice to the victim.
Afghanistan:
Even in Afghanistan, the Islamic law is followed for punishing the rape accused. The rapist is either hanged to death or shot dead by a bullet in the head. The punishment is given within four days of the crime.
Iran:
According to Islamic law, death penalty is essential for rapists. In Iran too, a rapist is given a death sentence. Even for other crimes, death is the penalty. Sometimes, the rape victim settles the case by taking compensation. In such a case, the rapist gets away with 100 lashes and sometimes imprisonment.
France:
The rape laws and punishments are more defined and extensive in France. An individual, if found guilty of aggravating a rape incident, is liable to 10 years of imprisonment. If the rape victim dies, the term is increased to 30 years. A rapist is given a life imprisonment if the victim undergoes any kind of torture and is subjected to acts of barbarism even after the rape.
USA:
In USA, punishments are enacted depending on the different types of sexual assault, which also include rape. Punishment is categorised as 1st, 2nd and 3rd degree rape punishments. The maximum sentence for rape is life imprisonment, which could be 30 years in jail.
Greece:
In Greece, the rapist is punished with incarceration.
Russia:
In Russia, the years of imprisonment for a rapist is three to six years. If the victim is below 18 years or suffers from any health problem after the rape, the period of imprisonment becomes four to 10 years. If the victim dies after rape, the imprisonment years increases from eight to 15 years. The convict is also banned from taking up any occupation or job for 20 years. The rapist would get 12 to 20 years of imprisonment if the victim is under 14 and she dies after the rape.
Israel:
In Israel, a rape convict gets imprisoned for minimum four years and a maximum of 16 years.
United Arab Emirates:
In United Arab Emirates too, the punishment, is death. The rapist is hanged till death and this punishment is meted out within seven days of the crime.
Egypt:
In Egypt too, the culprit is hanged till death.
Netherlands:
Any kind of sexual assault or forced sex, including a French kiss, is considered as a rape in Netherlands. The punishment for the rapist ranges from four to 15 years of imprisonment depending on the age of the victim. Even the rape of a prostitute or any harassment done to her is given much priority in Netherlands.
Landmark Judgements
The Nirbhaya Case (2012)
This case hardly requires any facts to be stated as it is still fresh in the consciousness of the nation. A paramedical student was tortured by six men to such an extent that an iron rod was shoved into her vagina and her intestines, abdomen, and genitals were damaged severely. They threw her out of the bus in the wintery night. One of the accused was juvenile and was sent to a reform facility for three years. One of the accused committed suicide in the jail and rest were given the death penalty.[13]
The court observed that “Question of awarding sentence is a matter of discretion and has to be exercised on consideration of circumstances aggravating or mitigating in the individual cases… protection of society and deterring the criminal is the avowed object of law…while determining sentence in heinous crimes, Judges ought to weigh its impact on the society and impose adequate sentence considering the collective conscience or society’s cry for justice. While considering the imposition of appropriate punishment, courts should not only keep in view the rights of the criminal but also the rights of the victim and the society at large.”
Rameshbhai Chandubhai Rathod vs State Of Gujarat [14]
In the instant case, the victim who had not seen even ten summers in her life is the victim of sexual assault and animal lust of the accused appellant. She was not only raped but was murdered by the accused appellant.
Imposition of the sentence without considering its effect on the social order in many cases may be in reality a futile exercise. As dealing with sentencing, courts have thus applied the “Crime Test”, “Criminal Test” and the “Rarest of the Rare Test”, the tests examine whether the society abhors such crimes and whether such crimes shock the conscience of the society and attract intense and extreme indignation of the community. Courts have further held that where the victims are helpless women, children or old persons and the accused displayed depraved mentality, committing crime in a diabolic manner, the accused should be shown no remorse and death penalty should be awarded.
State vs Deepak Dogra (2013)
The boy established the sexual relations with the victim on the false pretext that he will marry her later. He performed an invalid marriage when the girl complained of him to the police when he refused to marry her and she was pregnant with his child. Keeping in view the ghastly and inhuman act of the convict, a substantive and stern sentence is required to be imposed upon the convict so that it is not only in commensuration with the gravity of the crime but also serves as an example for the others who might also venture on the same forbidden path..The convict does not deserve any leniency.[15]
State Of Maharashtra vs Chandraprakash Kewal Chand Jain
A girl who was newly married was raped by one policeman twice while his husband was kept separate from her. He not only raped her but also threatened her that if she opens her mouth, then he will burn her and her husband alive. Trial court-sentenced the respondent to suffer rigorous imprisonment for 5 years and to pay a fine of Rs.1,000 in default to suffer rigorous imprisonment for 6 months.
The court held that when a person in uniform commits such a serious crime of rape on a young girl in her late teens, there is no room for sympathy or pity. The punishment must in such cases be exemplary.
Conclusion
The courts and the legislature have to make many changes if the laws of rape are to be any deterrence. The courts have to comprehend the fact that these conscienceless criminals- who sometimes even beat and torture their victims- who even include small children, are not going to be deterred or ennobled by such a small time of imprisonment. Therefore, in the best interest of justice and the society, these criminals should be sentenced to life imprisonment.
Law remains but the number of victims (including minor) continues to increase destroying the very soul of the helpless women. Thus, The Amendment 1983 has brought about some important changes in the existing laws of rape as a response to the growing public opinion demanding more stringent anti rape laws.
Frequently Asked Questions
1. Who can commit rape, under the purview of the IPC?
The language of Section 375 of IPC is clear. It begins with ‘A man is said to commit rape if…’
In so prefacing the definition of Section 375, it is clear that in the Scheme of the Indian Penal Code, the perpetrator of rape can only be a man.
However, as far as child victims of sexual abuse are concerned, the Protection of Children from Sexual Offences Act, 2012, is gender neutral. The offence of penetrative sexual assault (defined in Section 3 of the POCSO Act), is materially equivalent to the offence of rape, as defined in the Indian Penal Code. In case of child sexual abuse, both the victim and the perpetrator can be male or female, and it is in this context that female perpetrators are recognized by the law.
2. Who can be the victim of rape, in the eyes of the law?
Section 375 of the Indian Penal Code only recognizes women as survivors of rape. The POCSO Act does recognize that any child (irrespective of gender) can be the victim of penetrative sexual assault. However, this leaves out adult male survivors of penetrative sexual assault, who the law does not recognize, as victims of rape.
Adult male survivors of penetrative sexual assault, as a category, are left out of the ambit of Section 375 of the IPC. It is a glimpse into the patriarchal construct of our laws that an adult male survivor of penetrative sexual assault will have to take recourse to Section 377 of the Indian Penal Code, a relic from a rather draconian past that seeks to punish ‘carnal intercourse against the order of nature’ and does not differentiate between consenting adults and non-consenting participants. This creates a tragic legal fiction that deems that ‘men can be sodomized but not raped’.
3. What acts are required to constitute the act of rape? Is penetration necessary?
Before 2013, the law did not recognize as ‘rape’ incidents of forced anal penetration, or oral sex. This led to an anomalous legal position where if someone was forced to have anal sexual intercourse, they could only be charged under Section 377 of the IPC, and not for rape. This had a significant impact on the Aruna Shanbaug case, where the perpetrator was never charged under Section 377 IPC, reportedly to save the fiancé of the victim from ‘embarrassment’. The perpetrator was convicted or attempted murder and robbery.
With the Criminal Law Amendment Act of 2013, the ambit of the term rape in the IPC was broadened to include many categories other than ‘penile-vaginal’ penetration. Four categories of actions are recognized as constituting rape, when done without the consent of the woman:
- When a man penetrates, to any extent, of the mouth, vagina, urtethra or anus of a woman or makes the woman do so with him or anyone else. (The vagina includes the labia majora)
- Inserts, to any extent, an object or a body part, not being the penis, into the aforementioned orifices, or makes her do so with him or any other person.
- Manipulates any part of the body of the woman so as to cause penetration into the said orifices, or makes her do so with him or any other person.
- Applies his mouth to said orifices of a woman or makes her do so with him, or any other person. (Note: No form of penetration is required here)
4. What is a gang-rape? Does each member of the group or gang have to commit sexual assault in order to face punishment?
Section 376D of the Indian Penal Code lays down 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 ….’
This provision for gang-rape recognizes that it is not necessary for each person in the group to actually commit the crime of rape, to have high degree of culpability. The law penalizes any activity done in furtherance of the common intention of the group as if it was the offence of rape itself. This would mean that even persons who stand guard over doors, or hold the victim own cannot get away with a lighter punishment by claiming that they did not actually commit the sexual assault.
5. Can A Woman Be Charged For Gang Rape?
The rationale given by the High court in Priya Patel vs State of M.P. [16] was that though a woman could not commit rape but if a woman facilitated the act of rape, she could be prosecuted for gang rape. The High Court was of the view that though a woman may not commit rape, but if a woman facilitates the act of rape, Explanation-I to Section 376(2) comes into operation and she may be prosecuted for gang rape. The rule is based on the principle of common intention as provided in section 34 of the IPC.
The apex court in the same case in appeal held that, after a reading of Section 375 of the IPC, rape may be committed only by man. The explanation to Section 376 (2) merely indicates that when one or more persons act in furtherance of their common intention to rape a woman, each person of the group must be deemed to have committed gang rape. The person included both men and women.
6. What is aggravated rape?
Aggravated rape can be because of the special position of either the victim, or the criminal –
- rape by someone having authority and control over the victim because of their legal status (like police officers, public servants, armed forces personnel, jail staff);
- rape by someone who is in a position of trust with the victim (hospital staff, relatives or guardians, person in control or dominance);
- special nature of victim (pregnant woman knowing her to be pregnant, woman under 16 years, woman who cannot give consent, woman suffering from physical/mental disability);
- rape involving violent circumstances (during communal violence, causing grievous hurt/ disfiguration/ endangering victim’s life, repeatedly raping same victim).
The punishment for committing such aggravated rape is rigorous imprisonment of between 10 years and life along with fine. Another form of aggravated rape is rape which results in the death of the victim or in her ending up in a permanent vegetative state and gang rape.
7. Is there a more severe punishment for repeat offenders?
Section 376E of the Indian Penal Code states that whoever has been previously convicted of an offence punishable under Section 376 or section 376A or section 376D (i.e. committing rape, causing death or vegetative state in the course of committing rape or committing gang-rape) 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. Note that this section requires a previous conviction to be present, followed by a subsequent conviction.
Edited By: J. Madonna Jephi
Approved & Published – Sakshi Raje
References
[1] Akshay Goel, Rape Laws In India-Appropriate or not?, http://www.legalservicesindia.com/article/471/Rape-Laws-In-India-Appropriate-or-not?
[2] Mayank Shekhar, Rape – Meaning, Essentials and Punishment, https://www.legalbites.in/law-notes-ipc-rape-meaning-essentials-punishment/ , (last visited on Feb 16,2018)
[3] Kanti, Judicial Stand on rape and gang rape – How the quantum of punishment is decided, https://blog.ipleaders.in/punishment-gang-rape-india/ , (last visited on Feb 28,2018)
[4] Ratanlal & Dhirajlal, Indian Penal Code, 1860 , 10th Ed.
[5] (2005) 1 SCC 88 para 14
[6] 1999 Cr LJ 3419 (Guj).
[7] AIR 1989 SC 702.
[8] AIR 2013 SC 2071
[9] 2003 Cri LJ 1539 SC.
[10] supra note 2
[11] The Criminal Law (Amendment) Act, 1983, (Act 43 of 1983)
[12] Sushil Malhotra, Criminal Law: What is the punishment for rape in other countries that are safer than India?, https://www.quora.com/Criminal-Law-What-is-the-punishment-for-rape-in-other-countries-that-are-safer-than-India , (last visited on March 21,2015)
[13]http://www.thehindu.com/news/national/article18390998.ece/binary/SupremeCourtverdict
[14] (2011) 2 SCC 764
[15] 1990 AIR 658, 1990 SCR (1) 115
[16] AIR 2006 SC 2639
