“(1) Whoever, except in the cases 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:
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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.
ADVERTISEMENTS:
(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 premises of any station house whether or not situated in the police station to which he is appointed; or
ADVERTISEMENTS:
(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 immate of such jail, remand home, place or institution; or
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(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 twenty years, but which may extend to imprisonment for life
The word “rape” means forcible seizure. It is a ravishment of a woman against her will or without her consent. It is a single act of sexual intercourse with a woman. It is, unlike abduction, not a continuing offence.
Ingredients:
In order to constitute the offence of rape, the prosecution has to prove—
(1) Sexual intercourse by a man with a woman;
(2) Such sexual intercourse must be under circumstances falling under any of the six clauses of this section.
1. Sexual intercourse by a man with a woman:
Under Section 10 of the Code the term “man” has been defined as a male human being of any age, and “woman” as a female human being of any age. A man is punished for the commission of rape if he has sexual intercourse with a woman.
Penetration is not only sufficient but necessary to constitute the sexual intercourse which is an essential element of the offence of rape. Though penetration may not be sufficient to deprive the woman of the marks of virginity by rupturing the hymens but there must be some penetration without which there can be no rape. This can be proved with the help of medical examination.
2. Circumstances:
A man is said to commit rape if he has the sexual intercourse with a woman under any of the following circumstances:
(1) Against her Will:
“Will denotes that faculty or power of the mind by which a person determines either to do or not to do something. It implies consciousness, cognition and mental determination. The term ‘Will’ refers to a previous or concurrent consent. The accused had the sexual intercourse with a woman when she was asleep. It was held that the accused committed rape against her Will”.
(2) Without her consent:
A man is said to commit rape if he has the sexual intercourse with a woman without her consent. Consent on the part of a woman is a defence to an allegation of rape. It requires voluntarily participation, not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent.
A woman is said to consent, only when she freely agrees to submit herself while in free and unconstrained possession of physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to. It is always a voluntary and conscious accordance of what is proposed to be done by another and concurred in by the former.
The facts that accused was making a show of his power and administering threats of arrest coupled with the use of his stick are circumstances that can put an end to resistance on the part of a woman. Under such circumstances the sexual intercourse with her was against her will or, if it was with her consent, that consent was obtained by putting her in fear of hurt.
Submission of her body under the influence of fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow. Consent of a minor girl is no consent and an accused who cohabits with a minor girl is guilty of rape even though he does so with her consent.
If there be no consent or if it be against her Will, the age of the girl is immaterial for the offence of rape. Where there is complete absence of any injury or scratch on the person of the appellant and the victim suggests it very clearly that intercourse was not forcible, the inference is that the girl must have been a consenting party.
In State of Maharashtra v. Prakash, the Supreme Court observed that for the determination of consent of woman, circumstances should be considered, only the statement of accused is not enough.
In present case there was a ceremony where the police was also invited to manage the ceremony. A husband and wife came to see the ceremony. At late night police caught husband and also wife. Husband was beaten by police and wife was threatened to sign a paper and was also raped by the police.
The police was convicted by Trial Court with three years’ imprisonment. High Court acquitted the accused. The Supreme Court again in appeal approved the conviction of accused awarded by Trial Court.
(3) With her consent, when her consent has been obtained by putting her in fear of death:
The consent obtained from the prosecutrix under fear of death or of hurt is no consent and the accused shall be punished for rape.
The mere fact that a woman submits through fear does not take the offence out of the ambit of rape. Submission of a female of her body under the influence of fear or terror is no consent.
(4) Consent under misconception of facts:
A man is also said to commit rape if he has sexual intercourse with her consent when he 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 lawfully married.
The crux of the matter is that the man practices deceit. The marriage is not real. Where the consent is obtained fraudulently making her believe that she has been lawfully wedded then the offence falls under Section 375(4) and Section 496. The Indian Penal Code does not distinguish between a minor and a major woman.
It was held by the High Court of Bombay in Sunil Vishnu Salve v. State of Maharashtra that clause Fourth of Section 375 of the Indian Penal Code applies when a man induces a married woman to have sexual intercourse with him by impersonating her husband.
(5) When consented by a woman to a man under misconception of fact that he was her husband, it amounts to rape by a person to whom the woman believes to be her husband.
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.
(6) With or without her consent when she is under 16 years of age:
Even if the girl is not modest or was a willing party or even if she invited the respondent to have sexual intercourse with him the act can still be an offence of rape if she was only 14 years of age.
The fact that no injury was found on the private parts of the girl or that she was used to sexual intercourse or that it was with consent, would not be of any use if the girl is proved to be below 16 years of age. The law requires only that the victim must be under 16 years of age.
In such cases question of consent would be immaterial as the case would fall within clause ‘fifth’ of the definition of rape given in Section 375. In cases under Section 376, the age of the prosecutrix is always of importance, particularly so where according to medical evidence, she was found to have been used to sexual intercourse and there was old rupture of hymen.
Where the accused was acquitted of the offence under Section 376, the Court should examine the question of age more closely, where no proof is available that the girl was ever subjected to sexual intercourse without her consent and prosecution failing to prove by reliable evidence that the girl was below 16 years of age at the time of the alleged occurrence, accused held not guilty under Section 376, I.P.C.
Necessity of penetration:
Penetration is not only sufficient but necessary to constitute the sexual intercourse required for the offence. It is not necessary that there should be complete penetration of the penis with emission of semen and rupture of the hymen.
Partial penetration of the penis within the labia majora of the vulva or pudendum with or without emission of semen or even an attempt at penetration is quite sufficient for the law.
In the case of Babu Ram v. State of U.P., it was held that the penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. The law is well settled on this point that even slightest penetration of penis into vagina without rupture of hymen would constitute rape.
Penetration necessary:
For the offence of committing rape, penetration is necessary. If penetration takes place in the case of girls below 14 years of age, a wide spread damage to the fourchette, hymen, labia majora, labia minora, vulva and the vaginal canal can be expected. In case of penetration these organs could not escape injuries or atleast the signs of violence.
Thus, where the accused was a robust man of 18 years and the victim was not more than 12 years of age and the said signs were found it was held that the absence of penetration could not be inferred only on the basis that according to the medical report the vagina admitted one finger with difficulty.
It can be deduced from the absence of injuries or any signs of violence of these organs that penetration had not taken place when an attempt was made by the accused to ravish the prosecutrix. The act of the accused thus amounted to an attempt to commit rape and not to a commission of rape itself.
Exception:
A. man cannot be guilty of rape on his own wife when she is over the 15 years of age on account of the matrimonies consent, she rendered at the time of marriage and which she cannot retract.