Sexual Offences Under IPC (Section 375-376E)

Sexual Offences Under IPC (Section 375-376E)

SECTION 375: RAPE

I. INTRODUCTION – Definition

According to Oxford Dictionary Rape is “the act of physically forcing a woman to have sexual intercourse: an act of sexual intercourse that is forced upon a woman against her will”. The offence of rape in its simplest term is “the ravishment of a woman, without her consent, by force, fear or fraud”. It is held in State of Maharashtra v. M.N. Mardikar that offence of rape is violative of victim’s Right to life under Art 21 and by its very nature is an obnoxious act of the highest order.

II. ESSENTIAL INGREDIENTS OF RAPE UNDER IPC

After the Criminal Law Amendment of 2013, according to S. 375 of IPC a man is said to have committed a rape when he himself does ( includes if he makes her to do with any other person) the following activities:

1. penetrates or inserts his penis or any other object or a part of body (not being a penis) respectively, to any extent, into the vagina, mouth, urethra or anus of a woman; or
2. 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; or
3. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person.

These acts must have been done under seven circumstances as explained below :-

III. DETAILED EXPLANATION OF CIRCUMSTANCES IN WHICH ACTS AMOUNT TO RAPE

Before explaining the circumstances it is necessary to understand the nature and meaning of Sexual Intercourse (“SI”) in context of this section.SI by a man with a woman is necessary to constitute an offence. S. 10- IPC, defines man and woman as a male and a female human being respectively of any age. In Sakshi v. UOI, it was held that by a process of judicial interpretation the provisions of S. 375 cannot be altered so as to include all forms of penetration such as penile/vaginal/oral penetration etc. It was held that though sexual intercourse has not been defined but it means only heterosexual intercourse. The afore-mentioned acts must have been done under any of the seven following circumstances :-

• Against her will – This expression means that the act must have been done in spite of woman opposing the same. Absence of injuries on the person of the prosecutrix is not necessarily an evidence of false allegation or that consent had been given to SI.
• Without her consent – Consent is an act of reason coupled with deliberation. Therefore, this clause operates when a woman is insensible because of influence of drinks etc. or is so imbecile that she is incapable of giving consent. The Code has maintained a distinction b/w “against her will” & “Without her consent”. While the former includes the latter but the latter act is not necessarily against her will.

1. Prior Consent – Consent obtained after the act has been done is no defence, it must be prior to it.
2. Presumption as to Consent – Consent or absence of it is generally gathered from the attendant circumstances. A sleeping person can never consent.
3. Presumption as to absence of consent – S. 114A of IEA, 1872, provides that where sexual intercourse has been proven, and the question is whether it was with or without the consent of woman allegedly raped u/s 376(2), the court shall presume that she did not consent.

• With her consent -Where the consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. In Tukaram v. State of Maharshtra, it was held that the fear which prompts a woman to give her consent must be fear of death or hurt to herself or a person in whom she’s interested. (In my conviction the domain of fear should be widened).
• With her consent – When the man knows that he is not her husband and that she has consented because she mistakenly believes herself to be lawfully married to that man.

Facts :- Bhupinder entered into a marital knot with Manjit Kaur; without disclosing to her about the existence of his previous marriage with Gurinder kaur. Manjit kaur gave birth to a female child post-sexual intercourse with Bhupinder, whom she believed to be her husband.

Held :- Accused held guilty of rape as prosecutrix married without knowledge of first marriage. It was held that consent given under this belief is no consent.

•  With her consent – When at the time of giving consent, by reason of unsoundness of mind or intoxication or due to administration of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Even if consent is given under these circumstances, it would amount to rape.
• With or without her consent – Sexual intercourse with a woman with or without her consent when she is under 18 years amounts to rape. The reason for keeping this age limit is to protect female children from (a) premature cohabitation & (b) from immature prostitution.
• When she is unable to communicate consent – In this case the inability can be because of any reason.

Note :- Mere penetration is sufficient to constitute sexual intercourse. It is not relevant as to how far it has entered.

III. EXPLANATIONS & EXCEPTIONS TO S. 375

Explanation 1.—For the purposes of this section, “vagina” shall also include labia majora.

Explanation 2.—Consent means an unequivocal voluntary agreement. However, if a woman merely does not physically resist to the act of penetration, it shall not be obviously 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 (wife not being under 15 yrs), is not rape.  However recently on 11 Oct, 2017 in Independent Thought v. UOI the apex court held that consensual sex with minor wife, that is if she is below 18 would amount to rape. It observed that this exception clause created an unnecessary and artificial distinction b/w married girl child and an unmarried girl child as it lowered the age of consent for a married girl child. It held that this clause took away the right of a girl child to her bodily integrity and reproductive choice.

Submission – Though through this act of judicial activism the court has replaced the age of 15 with 18 under exception 2, but nevertheless, it has refrained itself from dealing with the issue of marital rape of a woman above 18 years of age.

IV. RELATED CONCEPTS VIS-A-VIS S. 375.

1. Diff b/w indecent attack(IA), Indecent assault(IAS) & attempt to rape :- An indecent attack does not amount to attempt to rape unless it is established that the accused was firmly determined to have his lust satisfied inspite of all obstacles. IAS – unless it shown that the accused was determined to gratify his passion at all cost inspite of resistance.
2. Corroboration of evidence :- It has been held that for conviction of rape corroboration is not necessary as no woman would like to throw light on an incident which would affect her chastity in the peculiar Indian climate. The evidence of prosecutrix can be the basis for the conviction without corroboration. Prosecutrix is not an accomplice she stands on a higher footing than injured witness.
3. Probability of false implication :- No one would concoct a false story of rape just to falsely implicate someone in the peculiar Indian conditions, therefore, it is very low.
4. Naming of rape victim : has been deprecated by the Supreme Court.

SECTION 376: PUNISHMENT FOR RAPE

I. INTRODUCTION

S. 376 provides for punishment for the offence of rape. This section has been extensively amended by Criminal Law Amendment Act, 1983. While, Sub-section (1) provides for punishment of rape, sub-section (2) deals with special situations wherein rape has been committed but in a graver manner.

II. TEXT OF THE S. 376

S. 376 (1) – provides that any person who commits rape will be punished with rigorous imprisonment which shall not be less than 7 years but which may extend upto imprisonment for life, and will also be liable to fine.

S. 376 (2) – As afore-mentioned, this sub section deals with special situations of rape which are 14 in number. Whoever commits rape in these situations shall be punished with RI which will not be less than 10 years but which may extend upto imprisonment upto life (It shall mean LI for remainder of that person’s natural life) and shall also be liable to fine. The same situations have been highlighted below where in rape is committed by :-

1. Police officer – Where a police officer commits rape within the limits of the police station to which he is appointed or in the premises of any station house or of a woman who in his custody or in the custody of any police officer who subordinate to him.
2. Public servant (“PS”) – Where PS commits rape of a woman who is in his custody or in the custody of a PS subordinate to him.
3. Armed forces – Where a member of the armed forces commits rape in the area which he is deployed.
4. Person in management or staff of jail.
5. Person in management or staff of hospital.
6. Person in position of authority, control or dominance.
7. Relative, guardian or teacher of the victim.
8. Commits rape during communal violence.
9. Commits rape on a pregnant woman.
10. Commits rape on a woman under 16 years of age.
11. Commits rape on a woman incapable of giving consent.
12. Commits rape repeatedly on same woman.

SECTION 376-A: PUNISHMENT FOR CAUSING DEATH OR RESULTING IN VEGETATIVE STATE

I. INTRODUCTION – ESSENTIALS

This section provides that if a person commits an offence that is punishable under sub-section (1) or sub-section(2) of S. 376 and during the commission of the offence inflicts any injury on woman which

• causes her death or
• Causes the woman to be in a permanent vegetative state

Punishment – Will be liable for punishment which will be rigorous imprisonment for not less than 20 years and which may extend up to imprisonment for life.(Imprisonment for life under this section shall mean imprisonment for the remainder of that person’s natural life) or with death.

II. PROCEDURE

It is cognizable, non bailable, non compoundable and is Triable by Court of Sessions.

SECTION 376-B: SEXUAL INTERCOURSE DURING SEPARATION OR OTHERWISE

I. SCOPE

This section provides punishment wherein husband has sexual intercourse with his wife without her consent during separation, whether under a decree of separation or otherwise.

II. INGREDIENTS

In order to apply this section following ingredients must be present:-

1. The wife must be living separately from her husband;
2. They must be living separately under a decree of separation or otherwise;
3. The husband must have committed sexual intercourse; and
4. It must be done without her consent.

Explanation – Sexual intercourse means any of the acts mentioned in clauses (a) to (d) of S. 375.

III. PUNISHMENT

A person convicted under this section shall be punished with imprisonment which shall not be less than 2 years and may extend to 7 years and shall be liable to fine as well. The amount of fine must be reasonable.

IV. PROCEDURE

It is cognizable (but only on the complaint of the victim), non bailable, non compoundable and is Triable by Court of Sessions.

SECTION 376-C: SEXUAL INTERCOURSE BY A PERSON IN AUTHORITY

I. INTRODUCTION – ESSENTIALS

This section provides that any person who is

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 any other place of custody, 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 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 and if such sexual intercourse does not amount to rape, then he shall be punished with RI which shall not be less than five years, but which may extend to ten years, and shall also be liable to fine.

Explanation 1.—In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of section 375.

Explanation 2.—For the purposes of this section, Vagina shall include lakia majora.

Explanation 3.—“Superintendent”, in relation to a jail, remand home or other place of custody or a women’s or children’s institution, includes a person who can exercise any authority or control over its inmates.

Explanation 4.—The expressions “hospital” and “women’s or children’s institution” shall respectively have the same meaning as in Explanation to sub-section (2) of section 376.

Held :- The expression “custody” in S. 376-C implies guardianship. A custody must be lawful. It must arise by virtue of some statute or custody conferred an order of a court of law or otherwise. Further, it held that in order to attract this section intercourse must take place at a place where the woman was in custody. Since, in this case the intercourse didn’t take place in the precincts of the school, the ingredients of this section are not satisfied.

II. PROCEDURE

It is cognizable, non bailable, non compoundable and is Triable by Court of Sessions.

SECTION 376-D: GANG RAPE

I. SCOPE

This section provides punishment for gang rape.

II. ESSENTIALS

If a woman is raped by one or more persons who act in furtherance of a common intention, then in such a case, each of those persons will be deemed to have committed the offence of rape.

III. PUNISHMENT

Any person guilty of an offence under this section will be liable for punishment which shall not be less than 20 years and which may extend to life imprisonment. The imprisonment for life here shall mean till the remainder of that person’s natural life. He shall also be punished with fine.

Proviso – It provides that the fine imposed should be reasonable to meet the medical expenses and rehabilitation of the victim. Any fine imposed under this section has to be paid to the victim.

II. PROCEDURE

It is cognizable, non bailable, non compoundable and is Triable by Court of Sessions.

SECTION 376-E: REPEATED OFFENDERS

This section provides that a person who already been convicted for an offence under S. 376 or S.376-A or S. 376 D commits an offence under these sections again shall be punished with imprisonment for life (which shall mean till the natural life), or with death.