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Rape (IPC)

Updated: May 12


Rape (IPC)
Rape (IPC)

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Definition of Rape


The term "rape," originating from the Latin word "rapio" meaning "to seize," denotes a forcible seizure, specifically referring to the forcible ravishment of a woman. The crux of the crime lies in its commission against the woman's will or without her consent.



Rape is defined as the "carnal knowledge" of a woman above a certain age, against her will, or of a female child, below that age, with or against her will. "Carnal knowledge" refers to sexual intercourse involving some degree of penetration, crucial in various sex crimes like rape, child molestation, or consensual relations with someone under the age of consent.



The modern definition of rape is broader, encompassing any gender of victim or perpetrator, not limited to men assaulting women. It acknowledges that rape with objects can be equally traumatic and includes cases where the victim is unable to consent due to mental or physical incapacity, whether temporary or permanent.



This extends to situations where the victim is incapacitated due to drugs or alcohol, recognizing their inability to consent. Similarly, legal incapacity due to age is also considered. Rape not only constitutes a dehumanizing act but also violates the victim's privacy and sanctity. It delivers a severe blow to her honour, undermining her self-esteem and dignity.



Sec. 375: Rape 


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.



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


Explanation 2. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or nonverbal communication, communicates willingness to participate in the specific sexual act:


Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be 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, the wife not being under fifteen years of age, is not rape.

 
 

Actus reus and Mens rea in Rape


In the context of rape, actus reus refers to the occurrence of sexual intercourse, as defined under Sec. 375(a) to (d), between a man and a woman. This sexual intercourse must take place under specific circumstances, constituting the mens rea of the offence: 


(1) against the woman's will; 


(2) without her consent; 


(3) with consent that is vitiated, such as consent obtained under fear, misconception of fact, unsoundness of mind, intoxication, or involving a minor woman; 


(4) in cases where the woman is unable to communicate consent.


Rape is inherently gender-specific, with the offender being male and the victim being female, as outlined in Sec. 375. In cases where a woman aids a man in committing rape, she may be held liable for abetment of rape under Sec. 109, IPC.



However, according to a ruling by the Supreme Court in the case of Priya Patel v. State of M.P. (2006) 6 SCC 263, a woman cannot be prosecuted for gang rape even if she facilitated the offence, as the intention to commit rape cannot be attributed to her.



The expression "in furtherance of their common intention" in the Explanation to Sec. 376(2) pertains to the intention to commit rape, which is inconceivable in the case of a woman.



2013 Amendments in Law of Rape


The Criminal Law (Amendment) Act, 2013 was enacted following the Nirbhaya case, introducing significant changes to Indian laws. New offences such as acid attack, voyeurism, stalking, and sexual harassment were recognized. The definition of rape in Sec. 375 was expanded to include various forms of penetration and manipulation.


Consent obtained under fear, fraud, or misconception of fact is deemed unlawful. The Act emphasised the importance of free and voluntary consent. While the definition of rape remains gender-specific, women can be convicted of abetment of rape. There have been calls for a gender-neutral rape law to address sexual assault against men.

 
 

Comparison between Position Before and After 2013 Amendment


Before the 2013 Amendment, rape was narrowly defined as penile-vaginal intercourse in certain circumstances.


The 2013 Amendment broadened the definition to include various forms of penetration and clarified that lack of physical resistance is immaterial.



The age of consent was raised from 16 to 18 years, and a new category of consent was added for those unable to communicate consent. Exceptions were also modified, including the removal of the marital rape exception for wives under 15 years.


Now, all sexual intercourse with a woman under 18, regardless of marital status, is considered rape.


However, the issue of marital rape remains unaddressed. The 2013 Amendment introduced the possibility of death sentence in certain rape cases.



Penetration in Rape Cases [Actus Reus]


Sec. 375 stipulates that any form of penetration constitutes rape, emphasizing that penetration, rather than complete insertion, suffices. The 2013 Amendment expanded this to include various forms of penetration beyond penile-vaginal intercourse. This shift resulted from concerns that perpetrators evaded prosecution by arguing lack of complete penetration. 



In Sakshi v Union of India, the petitioner sought to broaden the definition of rape to include non-penile-vaginal penetrations, highlighting their traumatic impact.



The court, while recognizing these concerns, categorised such acts under Sec. 377 (unnatural offences) and Sec. 354 IPC (outraging modesty), rather than Secs. 375/376.


Renowned experts underscored that rape entails degradation and violation, not solely penile-vaginal penetration, advocating for a modern interpretation.



Despite medical evidence in cases like Prithi Chand v State of HP suggesting difficulty in penetration, the court rejected such arguments, emphasising the traumatic impact on victims.



Intention in Rape Cases [Mens Rea]


In the context of rape, the distinction between "against her will" and "without her consent" is crucial. "Against her will" refers to situations where a woman resists or objects but is overpowered by the accused, while "without her consent" pertains to instances where the woman is unable to comprehend the nature of the act due to impairment of reasoning capacity.



Consent, as defined in Explanation 2 to Sec. 375, denotes an unequivocal voluntary agreement communicated through words, gestures, or any form of communication. It requires the woman to freely agree while being in full possession of her physical and moral faculties.



An act of submission due to coercion or fear does not constitute consent under the law. Consent entails a voluntary and conscious acceptance, accompanied by a mental and physical capacity to act freely.


Withdrawal of consent during the sexual act absolves the accused of rape, provided the consent was obtained prior to the act.



The Indian Penal Code distinguishes between "against her will" and "without her consent" to ensure comprehensive coverage of rape cases. However, drawing a clear line between submission and consent can be challenging and requires careful examination of the evidence in each case.



Passive Non-resistance: Absence of Injuries on Body


Explanation 2 to Sec. 375 clarifies that the mere absence of physical resistance from a woman does not imply consent to sexual activity.


A woman's passive submission due to fear or helplessness cannot be construed as consent, as observed in various court cases.



In instances where a woman initially resists but later resigns in the face of inevitable circumstances, her lack of continued resistance does not signify consent.


Similarly, the absence of injuries on the victim's body does not necessarily indicate consent, especially when other evidence, such as torn clothes or abrasions, suggests resistance.



Medical evidence indicating the absence of injuries does not automatically imply consent, as observed in cases where victims were overpowered and unable to resist. However, courts have also considered factors such as the presence of injuries or the victim's behaviour to determine consent.



For example, in cases where no injuries were found, and the victim's conduct suggested consent, the courts ruled in favour of the accused.



Sex with a Promise of Marriage: Whether Rape?


In cases where the prosecutrix, aged above 16, consents on the promise of marriage, fully understanding the implications and fails to disclose it until pregnancy, the accused may not be convicted of rape.



Her consent in such instances reflects genuine desire and understanding [Jintu Das v State of Assam, 2003 CrLJ 1411 (Gau); Uday v State of Karnataka AIR 2003 SC 1639].


Similarly, in situations where the accused deceives a minor girl into sexual activity under the pretext of marriage, a conviction under Sec. 376(1) is warranted [Dayaram v State of M.P, 1992 CrLJ 3154 (M.P.)].



Courts have ruled that having consensual sex based on a promise of marriage does not amount to rape, unless the promise was made deliberately to obtain consent [Pradeep Kumar Verma v State of Bihar, 2007 IV Cr.L.J. 4333 (SC)].


In Deepak Gulati v State of Haryana (AIR 2013 SC 2071), the Supreme Court emphasized the need to differentiate between rape and consensual sex, considering the accused's intention to marry.



The court clarified that intercourse under a promise to marry constitutes rape only if the accused had no intention of keeping the promise from the beginning [Anurag Soni v State of Chhattisgarh AIR 2019 SC 1857].



Consensual intercourse without assurance of marriage does not constitute rape. The court's analysis in such cases considers the girl's understanding and maturity [Dhruvaram Murlidhar v State of Maharashtra AIR 2019 SC 327].



In Pramod S. Pawar v State of Maharashtra (AIR 2019 SC 4010), the court outlined conditions to establish if consent was vitiated by a 'misconception of fact' regarding marriage promises, emphasising that a false promise must have immediate relevance to the woman's decision to engage in sexual activity.

 
 

Consent obtained by Fraud or Force


In R. v Williams (1923) 1 KB 340, the accused convinced a 16-year-old girl that he needed to perform a medical procedure to correct her voice. Under this false pretence, he engaged in sexual intercourse with her. He was found guilty of rape.



In Motorcom (1954) Nag 922, a woman agreed to have sexual intercourse in exchange for payment. However, the promised payment turned out to be fictitious.


The court ruled that this fact did not invalidate her consent, and the accused was acquitted of rape. Thus, if a man deceives a prostitute into having intercourse by promising payment but fails to deliver, the prostitute cannot accuse him of rape.


The crucial factor in a rape case is whether the woman consented to the specific act of sexual intercourse with the accused.


Once it is established that she understood the nature of the act and agreed to it, her subsequent refusal to consent holds no legal weight [R. v Linekar (1995) 3 All ER 69 (CA)].



Rape of a Woman of Easy Virtue


Sec. 375 clarifies that consent must be specific to the particular time and act in question. Past consent for the same act is irrelevant, particularly in cases involving women of questionable morals.


The courts have affirmed that a woman's promiscuity does not justify violating her consent. Even if she has a history of sexual activity, she retains the right to refuse sexual intercourse. The law protects her regardless of her moral character.


Cases have emphasized that a woman's loose morals do not invalidate her testimony in rape cases. However, factors such as delayed reporting and lack of injuries may affect the credibility of her evidence.


Ultimately, the focus in rape cases is on whether the accused committed the offense at the time alleged, not on the victim's past sexual behavior.


Even if she has engaged in previous sexual activity, she still has the right to refuse consent and is not to be viewed as an easy target for sexual assault.




Vitiated Consent under Fear of Death or Hurt [Clause 3]


When a woman's consent is obtained through fear of death or hurt, it constitutes rape according to Clause Thirdly, Sec. 375. Passive submission, acquiescence, or non-resistance in the face of compulsion induced by fear or duress does not amount to legal consent.



In State of Maharashtra v Prakash (AIR 1992 SC 1275), it was established that consent coerced through threats of death or harm is invalid. In this instance, a police constable and businessman had sexual intercourse with a rural woman after beating her husband and threatening police action against him.



It was determined that Clause (iii), Sec. 375 applied, along with Sec. 34. The assertion that the victim consented willingly was dismissed, highlighting that the threat of force, even without actual use, is sufficient [Satpal Singh v State of Haryana (2010) 8 SCC 714].



Case Law


  1. TUKARAM v STATE OF MAHARASHTRA  ("Mathura Rape” Case)  (AIR 1979 SC 185) In a notable case involving an 18-year-old orphan girl named Mathura, living with her brother, the issue of implied consent and the distinction between consent and passive submission came to the forefront. Mathura developed a relationship with Ashok, which led to a police report filed by her brother alleging her kidnapping. Mathura, along with Ashok and others, was brought to the police station where two accused constables were present. The constables instructed Mathura's companions to leave and then proceeded to rape her, with one being successful while the other was too intoxicated to carry out the act.


The Sessions Judge acquitted the accused, citing tacit consent by Mathura, but the Bombay High Court reversed this decision. The High Court emphasised the difference between consent and passive submission, asserting that mere passive surrender under threat or fear cannot be equated with genuine desire. The initiative for the sexual act likely came from the accused, exploiting Mathura's vulnerable position due to the pending complaint filed by her brother.


However, the Supreme Court overturned the High Court's ruling, stating that the circumstances did not support the fear of death or harm, negating the application of Clause Thirdly, Sec. 375.


The victim's failure to appeal to her companions and her compliance with the constable's orders were interpreted as consent for the sexual intercourse. The absence of injury marks suggested a peaceful encounter, and her failure to resist further supported the view of consent rather than passive submission.


The Supreme Court's decision sparked widespread criticism, with many viewing it as a grave injustice and a violation of women's rights under the law and the Constitution.


Critics argued that the absence of injuries does not necessarily imply absence of resistance, and while there was evidence of submission, there was no evidence of genuine consent.


In response to this case and the perceived failure of the law to protect rape victims, the Criminal Law (Amendment) Act, 1983 was passed, reflecting a concerted effort to address these shortcomings and safeguard the rights of innocent victims of sexual assault.



Vitiated Consent obtained by Impersonation [Clause 4]


According to Clause Four of Section 375, if a woman consents to intercourse under the mistaken belief that the person involved is her husband, the accused, a different individual, cannot claim that she consented to the act.



In such circumstances, the perpetrator knowingly deceives the woman into believing he is her husband. Even if he does not actively induce this belief, but is aware of it and chooses to remain silent, he is still liable under the law.



This type of consent, given under a misconception of fact, falls within the purview of Section 90 of the IPC. Such scenarios are plausible, such as sexual intercourse in the darkness of night, especially in rural areas where entering someone else's house may not be challenging, or when a woman wears a veil and has not seen her husband's face.



Additionally, situations where a marriage is void due to unfulfilled conditions, of which the husband is aware but the wife is not, also apply.



The offender is deemed guilty of rape if he knowingly impersonates the woman's husband. However, if both parties genuinely believe they are legally married husband and wife, Section 375 does not apply.



In the case of Bhupinder Singh v UT of Chandigarh, the prosecutrix married the accused without knowledge of his prior marriage. Upon discovering her husband's first marriage four years later through the accused husband's friend, it was determined that the case fell squarely under Section 375, Clause 4.

 
 

Vitiated Consent due to insanity, Intoxication, etc. [Clause 5]


Clause Five of Sec. 375 reads: “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.” 



The object of this clause is to protect and safeguard the interest of the woman, who accords consent for sexual intercourse without knowing the nature and consequences of the act by reason of unsoundness of mind or under the influence of stupefying or unwholesome substance.



Statutory Rape (Consent or No Consent by girl under 18 Years) [Clause 6]


According to Sec. 375, Six, “any male, who does an intercourse with any female who is below the age of 18, with or without her consent will be guilty of rape.” The age of consent was raised from 16 to 18 by the Criminal Law (Amendment) Act of 2013.



The rationale behind considering sexual intercourse with a minor as rape stems from the understanding that minors are deemed too young to legally consent to sexual activity.


A minor girl is viewed as incapable of comprehending the nature and repercussions of such acts to which she might ostensibly consent. Consequently, the consent of a minor holds no weight and cannot serve as a defence for the accused.



The legal policy aims to shield young girls from premature sexual encounters, which can lead to unintended pregnancies and exploitation, particularly in cases of immature prostitution. By designating such acts as statutory rape, the law seeks to relieve the prosecution of the burden of proving lack of consent, thereby facilitating more flexible convictions in cases involving minors.



In the case of Harpal Singh v State of HP. (AIR 1981 SC 361), the Supreme Court ruled that even if a 14-year-old girl willingly engages in sexual intercourse with the accused, the accused would still be liable for rape under this provision.



Similarly, in Mana Ramchandra Jadhav v State of Maharashtra [1984 CrLJ 852 (Bom)], where a minor girl left her mother's house to live with the accused after her mother rejected the proposal for her marriage due to her young age, any sexual intercourse with the accused would fall under statutory rape.



Unable to Communicate Consent [Clause 7] 


Section 375, Seventhly, makes sexual intercourse with a woman who is unable to communicate her consent for sexual act, a rape. 



Exception 2 to Sec, 375 (Marital Rape)


Exception 2 to Section 375 of the Indian Penal Code states that sexual intercourse or sexual acts by a man with his own wife are not considered rape if the wife is above 15 years of age.



This exception is based on the concept of matrimonial consent, which is considered irrevocable once given by the wife. However, it's important to note that this exception does not grant the husband the right to disregard the safety and well-being of his wife.



However, a husband can still be prosecuted for committing rape on his own minor wife below 15 years of age.


The Supreme Court, in the case of Independent Thought v Union of India (AIR 2017 SC 4904), ruled that any sexual intercourse with a woman below the age of 18 years, including a wife, is considered rape.


This decision aimed to address the disparity between legal provisions and constitutional rights, as well as align with the Protection of Children from Sexual Offences (POCSO) Act, 2012, which defines any person below 18 years as a child.



While the law in India does not consider adult marital rape (where the married girl is above 18 years) as rape, victims still have recourse under the Protection of Women from Domestic Violence Act, 2005, or through seeking divorce.


The Justice J.S. Verma Committee Report (2012) recommended removing the exception to Section 375 concerning marital rape, emphasizing that marriage should not be seen as an automatic consent to sexual acts.


However, this recommendation was not implemented, despite calls from the Human Rights Council (2018) to remove the exception and declare marital rape as rape.

 
 

BURDEN OF PROOF IN RAPE CASES


Prosecutrix Evidence and Need of Corroboration

In rape cases, the burden of proof lies on the prosecution to demonstrate that sexual intercourse occurred without the woman's consent.


The defence is not required to prove consent, and post-act consent is not a defence. Convictions often rely heavily on the victim's testimony, which must be treated with caution and corroborated by circumstantial evidence.



A rape victim is not considered an accomplice but rather a victim. While corroboration is not necessary for conviction, it may be required in certain circumstances, such as when the victim is of legal age and sexually active, or when the case presents unusual probabilities.


Medical evidence and other corroborative evidence, if available, should be carefully considered.



Corroboration, while not mandatory, is often sought from independent sources and is considered a matter of prudence. The need for corroboration depends on the circumstances of each case, and its absence should be justified in the judgment.


Additionally, corroboration may be dispensed with if the victim's testimony is credible and the circumstances support it, but reasons for doing so must be provided in the judgment.



Leading Case Law


STATE OF PUNJAB v GURMIT SINGH  [AIR 1996 SC 1393] - Corroboration is not a legal requirement but rather a guideline of prudence in cases of sexual assault. The testimony of a victim should be given due weight unless there are compelling reasons to seek corroboration. Victims of sexual assault often hesitate to come forward due to societal stigma, and their testimony should not be dismissed based on trivial discrepancies.



In instances where corroboration is sought, it can come from various sources such as the victim's previous statements, medical evidence, or circumstantial evidence. The absence of injuries or spermatozoa does not necessarily discredit the prosecution's case and should be evaluated within the context of each situation.



While corroboration may play a crucial role in some cases, it is not always decisive. The court should consider all available evidence, including the victim's testimony, circumstantial evidence, and the behaviour of the accused, to arrive at a just decision.



Even if a victim's testimony is challenged or she turns hostile, other evidence such as medical findings can corroborate non-consensual sexual intercourse. The court should give weight to such evidence to ensure justice is served.



RADHU v STATE OF M.P.  [(2007) 12 SCC 57] - The Supreme Court acknowledged the prevalence of false accusations in rape cases and cautioned trial courts to carefully evaluate evidence. In a notable case, Radhu from M.P. was acquitted after being convicted of rape based on the victim's testimony, despite lack of medical evidence supporting the assault. The court emphasised the need to scrutinise allegations, especially considering instances where false charges are motivated by revenge or financial gain. In this specific case, the victim's account was found to be inconsistent, leading the court to doubt its credibility and ultimately acquit the accused.



PUNISHMENT FOR RAPE  [SEC. 376]


The courts in India have been urged to adopt a stern approach in cases of rape, emphasizing the need for proportionate punishment. Recent judgments, such as in Shimbhu v State of Haryana, have highlighted the judiciary's responsibility to ensure appropriate sentencing for perpetrators of such heinous crimes.



The 2013 amendment to Section 376 of the Indian Penal Code introduced stricter provisions, widening the definition of rape and eliminating judicial discretion to impose lesser sentences without adequate reasons.


Additionally, life imprisonment under the amended law now means incarceration for the remainder of the perpetrator's natural life, without the possibility of early release.



Criminal Law (Amendment) Act, 2018


In response to public outrage over cases like Kathua and Unnao, significant changes were made to laws concerning sexual assault and rape with the enactment of the Criminal Law (Amendment) Act, 2018.


This amendment aimed to address the increasing incidence of sexual violence against minors by introducing stricter penalties and ensuring expedited trials.



Key features of the 2018 Amendments include increasing the minimum punishment for rape of women to ten years, with provisions for life imprisonment. Additionally, rape of girls below 12 or 16 years of age now carries minimum imprisonment of 20 years, extendable to life imprisonment or death.


The amendments also introduced fines payable to the victim and created three new offences related to rape, including gang rape of minors, under Sections 376AB, 376DA, and 376DB of the Indian Penal Code.



Custodial Rape


Section 376C of the Indian Penal Code introduces the concept of "custodial rape," where consent is obtained under coercive circumstances. In such cases, offenders, often in positions of authority, take advantage of their power to induce or seduce women in their custody to engage in sexual intercourse.



Public servants, superintendents, managers of jails or remand homes, and staff of hospitals engaging in sexual intercourse with female inmates or patients face imprisonment of 5-10 years and a fine.



Sec. 376D: Gang Rape


When a woman is raped by a group of people acting with a common intention, each individual involved is deemed to have committed gang rape. The punishment for gang rape is rigorous imprisonment for a minimum of 20 years, extendable to life imprisonment, along with a fine.


Under the amended law, all individuals involved, regardless of gender, are liable for punishment and are required to pay compensation to the victim for medical expenses and rehabilitation. The essence of liability in gang rape cases lies in the existence of common intention among the perpetrators.



Proof of a completed act of rape by each accused is not necessary; what matters is their concerted action in furtherance of the common intention to commit rape. However, mere presence at the scene of the crime does not imply common intention, and accusations must be supported by evidence beyond a mere statement. Additionally, women cannot be held guilty of committing rape or gang rape under this section.

 
 

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