A man is said to commit “rape” who, except in the case hereinafter expected, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:
First:
Against her will.
ADVERTISEMENTS:
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.
ADVERTISEMENTS:
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.
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Fifthly:
ADVERTISEMENTS:
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 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. (S. 375).
Under the Criminal Law (Amendment) Act, 1983 (No. 43 of 1983) for the heading “Of rape” occurring immediately before Section 375 and for Sections 375 and 376, the heading “Sexual Offences” and the revised sections have been substituted.
Section 375 inserts a new clause “fifthly”, besides addition of the words “or any person in whom she is interested” in clause Thirdly; and thus the scope of S. 375, I.P.C. has been widened.
Ordinarily, rape is violation, with violence, of the private person of a woman—an outrage by all canons. (Phul Singh v. State of Haryana, A.I.R. 1980 S.C. 249). It is the ultimate violation of the self. It is deathless shame and should be treated as the greatest crime against human dignity.
It is an unlawful sexual intercourse by a man with his own wife below the age of fifteen or with any girl below the age of sixteen, or with any other woman above sixteen without her free consent, against her will or with consent obtained under certain unlawful circumstances.
Consent is invalid when it is given under misconception of facts; when the man impersonates her husband; when a woman, by reason of unsoundness of mind, or intoxication, is unable to understand the nature and consequences of act, to which she gives her consent; if, however, the intoxication is taken by herself or of her own free will, it will be indecent assault; when consent has been obtained by putting her in fear of death, or of hurt threats of intimidation need not necessarily be directed against the body of the victim, it may as well be against her husband or child and the terror may be mental or moral terror; and when the female is an idiot or imbecile and does not understand the import of sexual intercourse.
Section 375 of the Indian Penal Code as amended states that a rape would be deemed to have been committed fewer than six descriptions. These include: having sexual intercourse with a woman without her free and voluntary consent, through deception, unsoundness of mind, or intoxication, or putting her in fear of death or of hurt. The latter also includes threats of death or injury to a third party with a view to forcing a woman to submit to sexual intercourse.
Punishment for rape:
(1) Whoever, except in the case provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) Whoever,
(a) Being a police officer commits rape
(i) Within the limits of the police station to which he is appointed; or
(ii) In the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) On a woman in his custody or in the custody of a police officer subordinate to him; or
(b) Being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) 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 woman’s or children’s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) Commits rape on a woman knowing her to be pregnant; or
(f) Commits rape on a woman when she is under twelve years of age, or
(g) Commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Explanation 1:
Where a woman is raped by one or more in a. group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.
Explanation 2:
“Women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widows’ home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation 3:
“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. (S. 376).
Custodial rape:
The Criminal Law (Amendment) Act, 1983 (known as the anti-rape law amendment) received the assent of the President on 25th December, 1983. It provides for penalties varying from seven years’ rigorous imprisonment to life term to those found guilty of committing rape.
The amended provision makes sexual inter- course by a person in the position of a custodian of his victim termed “custodial rape” as an offence punishable with imprisonment of at least ten years which may extend to life and also to fine.
The following are the categories of “custodial rape”:
1. A police officer committing rape in the local area to which he is appointed, or in any police station whether or not situated in such local area, on a woman in his custody or in the custody of a police officer subordinate to him.
2. A public servant taking advantage of his official position and committing rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him.
3. Any person being on the management or on the staff of a jail, remand home or other place of custody or of women’s or children’s institution, taking advantage of his official position and committing rape on any inmate the institution.
4. Any person concerned with management or being on the staff of a hospital, committing rape on a woman who is receiving treatment in that hospital.
Rape on a woman knowing her to be pregnant and gang rape, i.e., where a woman is raped by three or more persons acting in furtherance of a common intention to rape, has been made punishable and treated on par with “custodial rape”.
Sexual intercourse with a wife of less than 15 years has also been included within the definition of rape. Similarly, sexual relation with a woman who is staying separately from her husband under a decree of judicial separation falls within the ambit of the offence.
In the custodial rape, it is not the rape victim but the accused that will be required to furnish proof of his innocence. The victim’s words for not having consented in a rape would be acceptable as true by the courts.
Section 114A of the Indian Evidence Act, 1872, added by the Criminal Law Amendment Act, 1983, lays down that in a prosecution for rape under cl. (a) or cl. (b) or cl. (c) or cl. (d) or cl. (e) or cl. (g) of sub-section (2) of S. 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it
was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.
The factors like the character or reputation of the victim are wholly alien to the very scope and object of S. 376 and can never serve either as mitigating or extenuating circumstances for imposing the sub-minimum sentence with the aid of the proviso to S. 376(2).
Thus, where the Supreme Court in its judgment reported expression “conduct” in the lexigraphical meaning for the limited purpose of showing as to how the victim had behaved or conducted herself in not telling anyone for about five days about the sexual assault perpetrated on her and it was observed that “the peculiar facts and circumstances of the case coupled with the conduct of the victim girl do not call for the minimum sentence as prescribed under S. 376(2)”, it could be said that the Supreme Court neither characterised the victim, as a woman of questionable character and easy virtue nor made any reference to her character or reputation. (State of Haryana v. Prem Chand and others, AIR 1990 S.C. 538).
In rape case the law does not require corroboration and, therefore, if the evidence of the prosecutrix is believed, there is no bar to convict the accused on her testimony alone. (Nandakisho Nath v. Nanda alias Ananta Charan Sahera, 1991 Cri. L.J. 835, Orissa).