The word ‘rape’ has been derived from the Latin term rapio, which means ‘to seize’. Thus rape in simple terms means forceful seizure.
Section 375 of the IPC defines rape but this section as well as the provisions providing for punishment of rape has undergone major changes due to the Criminal Law (Amendment) Act 1983 and the Criminal Law (Amendment) Act 2013. The 1983 Amendment widened the ambit of ‘rape’ and stipulated a mandatory minimum sentence of seven years imprisonment which may be extended to a term of ten years or for life. It also made gang rape, custodial rape and rape on a pregnant woman, offences.
A man is said to commit “rape” if he—
- penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
- inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
- manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
- applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,
Under the circumstances falling under any of the following seven descriptions:
- Against her will.
- Without her consent.
- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.
- With or without her consent, when she is under eighteen years of age.
- When she is unable to communicate consent.
Essentials of Rape under S. 375
- There must be sexual intercourse as per the terms of the provisions of s375 (a) to (d)
- Such intercourse must be under the seven conditions above mentioned.
It implies penetration to any extent, of the penis into the vagina, mouth, urethra or anus of a female.
The depth of penetration of the penis is immaterial. The fact that the private part of the accused entered into the person of the woman is enough to constitute rape. Penetration not ejaculation is the essential of rape. Ejaculation without penetration implies attempt to rape instead of actual rape.
Against her will
An offending act is said to be done against will of a woman when it is done despite her resistance and opposition.
Without her consent
Consent means a voluntary act and acceptance of the act proposed to be done. There must be a voluntary agreement on the part of the woman to willingly participate in the specific sexual act communicated to him by either words, gestures or any other form of verbal or non verbal communication. Mere absence of physical resistance to the act of penetration by itself cannot be taken as her consent for the sexual act.
Taking back the consent during the sexual act would not make the man guilty of rape.
Consent obtained under fear of death or of hurt
It is no consent if the ‘consent’ is obtained by putting the woman under fear of death or hurt but this fear must be of death or of hurt to herself or to another person she is interested in. In State of Maharashtra v Prakash, a police constable had sexual intercourse with a woman after beating her husband and threatening to put him in jail. The Court held that this act came within the purview of this clause.
Consent obtained by fraud
It doesn’t amount to consent if the accused obtained it by fraud. For example if the woman gives her consent believing the accused to be her lawfully married husband, then such consent is not a valid consent under law.
Consent of an insane or intoxicated woman
In Tulshidas Kanolkar V State of Goa, the accused ravished a mentally challenged girl on several occasions which resulted in her pregnant. It was held that consent given by a mentally challenged girl can’t be said to be consent for sexual intercourse. Similarly sexual intercourse under influence of drink cannot be said to be sexual intercourse with consent.
Consent of a woman less than eighteen years of age
Sexual intercourse with a woman less than 18 years of age amounts to rape irrespective of whether she gave her consent or not.
In Harpal Singh v State of Himachal Pradesh, it was held that even if a girl of 14 years of age gives her ‘consent’ for sexual intercourse, the accused would still be liable for the offence of rape.
Exception to this clause- Sexual intercourse by a man with his own wife, if she is over fifteen years of age, doesn’t amount to rape. In the case of Bishnudayal v State of Bihar, the 14 year old prosecutrix was sent to her elder sister’s husband’s house to look after her sister but there she was forcibly married to the accused who had sexual intercourse with her. The accused was held liable for rape under section 376.
Section 376 of the IPC provides the punishment for rape. It consists of two sub sections. While the first one is in respect of rape generally, the second sub section deals with instances of other forms of rape which when compared to the former are subject to severe punishment.
According to the first sub section, a person who is convicted of the offence of rape shall be punished with rigorous imprisonment for a term not less than seven years, but which may extend to imprisonment for life and fine.
The second sub section deals with 14 instances where a minimum sentence of rigorous imprisonment for ten years, with fine, is provided. This term of ten years may be extended to imprisonment for life.
 Wahid Khan v State of Madhya Pradesh (2010) 2 SCC 9
 Aman Kumar v State of Haryana AIR 2004 SC 1497
 Ramkripal Shyamlal Charmarkar v State of Madhya Pradesh (2007) 11 SCC 265
 AIR 1992 SC 1275
 AIR 2004 SC 978
 AIR 1981 SC 361
 AIR 1981 SC 39