“Crime is the outcome of a diseased mind and jails must have an environment of hospital for treatment and cure- An eye for an eye would turn the whole world blind.”
Rape is one of the most heinous offences to be committed against a human body. We can define rape as an unlawful sexual activity or sexual intercourse carried out forcibly or under threat of injury, against a person’s will or with a person who is minor or incapable of giving a valid consent because of his/her mental illness. Many countries like Canada, US and Australian states are using terms such as ‘sexual assault’, ‘criminal sexual intercourse’ and ‘sexual intercourse without consent’ rather than using ‘rape’ as a terminology for this offence.
In India, the legislation was formulated back into 1860 along with the laws pertaining to Rape. Indian Penal Code was enacted in year 1860 but was actually commenced in January 1862. At that time India was under the control of british govt. and the final draft of the IPC was submitted to Governor-General of India in council in 1937. Considering the facts we know that the provisions according to the rational of that time.
According to the original provision for definition of rape under Section 375 of IPC, a male is said to have committed rape, if he have done sexual intercourse with a female in following circumstances:
- Against her will
- Without her consent
- With her consent but that consent is not a free consent. Her consent has been obtained by coercion or any undue influence on her.
- With her consent, when the man is pretending to be her and has obtained such consent because she believes him to be her lawfully wedded husband.
- With her consent, but she is not in a prudent mental health to give such consent or to understand the nature of such act to which she has given the consent because of unsoundness of mind or intoxication.
- When she is under 16 years of age because minors consent is no consent.
As per common law definition of rape five elements, which have to be proved in the court of law are:
- The act had to be criminal in nature,
- It must involve carnal knowledge,
- The act must victimize a woman,
- Must be committed using force,
- Force had to be against the will of the victim.
The Criminal law Amendment of 1983
Tuka Ram and Anr. v. State of Maharashtra[i] (Mathura Rape Case):
Bombay High Court: The Bombay High Court observed the difference between passive submission and consent. It was held that since the accused were strangers to girl and her brother filling the complaint in the same police station, decreases the chances of her making advances on them. The court held that the “absence of semen on the vaginal smears and pubic hair” was because of the reason that she was examined 20 hours after the incident and it is presumed that she has taken bath in meanwhile. The court adopted the principle of “Passive submission”. The Bombay HC held the two accused guilty. But in 1979, the SC overturned the conviction of the HC and acquitted the accused. The Supreme Court agreed with the Sessions Court that this was a case of consensual sexual intercourse. On this point the SC further added that since “no marks of injury” were found on Mathura’s body and there was “no resistance’ on her part and since she did not “raise an alarm” for help and thus she “consented for sex”. This created much uproar. Therefore, following this, a letter was written to the CJI by Upendra Baxi, Vasudha Dhagamwar, Raghunath Kelkar and Lotika Sarkar. This letter led to the Criminal Law Amendment of 1983.
By the Amendment Act, the work ‘Sexual Offences’ was substituted in place of ‘rape’ and section 375and 376 D were added in the code. Some of the important changes made in the law of rape vide Act 43 of 1983 are listed below.
- Consent of woman of unsound Mind is no consent: Before the Amendment Act of 1983, there were five clauses in S 375, IPC. A new clause fifthly has been inserted in place of the existing clause ‘Fifthly’ which has been inserted in place of the then existing clause fifthly which has been renumbered as clause Sixthly to Section 375 IPC. The new clause fifthly to Sec. 375 negates the consent of the woman of unsound mind or consent given by woman under undue influence for the purpose of the offence of rape. The consent given in such situation is not a valid consent and the accused is held to be liable
- Presumption of absence of Consent: The Evidence Act 1872 was amended by inserting Section 114-A, which draws a conclusive presumption as to the non-existence of consent of the woman in case of rape, under Section 376 (2) (a) to (e) and (g) of IPC, shifting the burden of proof on the accused in case of custodial rape.
- Prohibition of Disclosure of Identity of the Victim: Section 228-A, IPC prohibits the disclosure of the identity of victims in rape case under as under Sec. 376, 376 A, 376 B, 376 C or 376 D, IPC.
- Trial in Camera: Sec. 327 of the Cr.P.C. 1973 has been amended and makes the new provisions for trial of rape cases or an offence under Sec. 376, 376A to 376 D, IPC in camera. This provision also prohibits the publication of trial proceedings without the advance approval of the court, under sub-sec. (2) and (3) of Sec. 327 IPC 1973.
- Intercourse by a man with wife during Judicial Separation: Section 376 A, IPC makes husband liable to punishment to the extent of two years of imprisonment in case of intercourse with his wife during the period of separation. As per customs, a husband cannot be held liable for rape upon his wife because by marriage she has given consent to the husband to exercise the marital rights. But now the concept of marital rape is emerging.
- Custodial Rape: Section 376 B to 376 D, IPC comprises a group of sections that creates a new category of sexual offences where the act is done by the consent of the victim, but under compelling circumstances. These offences are committed by those persons who happen to occupy a supervisory position and power in the institution under their authority and obtain the consent of the woman by inducing or deducing her for sexual intercourse. Sec. 376 B IPC prescribes punishment in case of intercourse by a public servant with a woman in his custody, Sec. 376 C prescribes punishment in case of intercourse by a superintended of jail, or remand home etc. and Sec. 376 D prescribes punishment in case of rape committed by management staff or employees of hospital with any women in the hospital. Punishment in such cases may extend up to five years of either simple or rigorous imprisonment or fine.
- Enhanced Punishments: Section 376, IPC has drastically enhanced punishment to deter people from indulging in such crimes. The punishment for rape now might extend up to life imprisonment with a minimum of seven years under cl. 1 and 10 years under cl. 2 of Sec. 376, IPC.
- Character assassination: legal Bar to put question about character of Prosecutrix in cross examination in 2002 vide Act 4 of 2003 in Sec. 146 of the Evidence Act, a provision has been inserted with effect from 31 December 2002 debarring the accused to put any question about the character of the prosecutrix.
The Criminal Law Amendment of 2013
Mukesh and Anr. v. State of (NCT of Delhi) and Ors.[ii]
Held: Supreme Court said that the convicts had committed “a barbaric crime” which had “shaken society’s conscience,” and the court upheld the death sentence of the four convicts in a gang rape. A death warrant was issued by the Delhi High court, setting an execution date of 22 January 2020.
Justice Verma Committee was constituted on 23rd December 2012, to recommend the amendments to the Criminal Law that provides speedy trials and enhanced punishment for offenders accused of committing sexual assault against women. The committee was headed by former Chief Justice of SC, J. S. Verma, former judge Leila Seth and former Solicitor General Gopal Subramanium. Committee submitted its report on 23rd January 2013. Recommendations on medical examination of victims, child sexual abuse, sexual harassment and rape are made. Other aspects were examined like marital rape and death penalty.
1) If we see this ordinance under section 326-A which is about Acid Attack the imprisonment which is not less than ten years but which may here the discretion of the court given this imprisonment which may extend to imprisonment for life and fine. If fine is imposed, it must be just and reasonable. The fine amount be used or given to the victim for her medical expenses.
2) Sec. 326 B is pertaining to voluntarily throwing or attempts to throw acid on any person or makes an attempt to administer acid with intent to causing permanent or partial damage etc shall be punished with imprisonment which may extent to seven years and also fine
3) Sec. 354-A pertains to sexual harassment and for punishment of the same if a man commits any of the following.
i) If any physical contact and advances in the opening negotiations sexual overtures or
ii) If demand or request for sexual favors or making sexually colored remarks
iii) Showing pornography to woman against her will.
iv) Giving sexual colored remark.
Earlier in Indian Penal code there was no offences related to pornography as per the change and other crime rate increasing there was a dire need to insert it the provision for the punishment. The punishment extents to rigorous imprisonment for the period of one year to three years or with fine or both. In other case the less punishment as imprisonment up to one year or with fine or with both.
4) Sec. 354-B: This section provides punishment for assault or use of criminal force to woman with intending to disrobe her or compelling to her naked in the public place then the liability the punishment is minimum three years and maximum seven years and also liable to fine.
5) Sec. 354-C is as to voyeurism which includes watching, capture the images of a woman who engaged in her private acts in her ordinary course with her expectation of not being observed by others and punishment provide is imprisonment of one years to seven years and also fine depending upon the gravity of the offence.
6) Sec. 354-D is pertaining to stalking: If any one follows a woman pursue her for contact for his personal interaction knowingly that woman is not interested and monitors her internet, e-mail or her electronic communication is liable for imprisonment extending for three years to five years and also fine.
The Criminal Law Amendment of 2018
C.B.I v. Kuldip Singh Sengar[iii] (Unnao Rape case):
Held: The convict, Kuldeep Sengar was sentenced to imprisonment for life, under section 376(2) of Indian Penal Code, 1860. The section provides for the punishment to a public servant who commits rape by taking undue advantage of his official position. The court held that “Sengar was a public servant and betrayed people’s faith.” The court imposed an exemplary fine of Rs. 25 lakh on him which had to be paid within a time period of a month.
- The Indian Penal Code, 1860: After the said amendment, Section 376 provides for categories of punishment for rape.
- Category one: Increased punishment for the rape of a woman that is minimum ten years of rigorous imprisonment which may extend to imprisonment for natural life of the offender under Section 376(1). Earlier the punishment was seven years to maximum 10 years.
- Category two: Punishment for rape of a female below the age of sixteen years has been added by this amendment. The punishment for said act is rigorous imprisonment of minimum 20 years to maximum life imprisonment under Section 376 (3).
- Category three: Punishment for rape of a female below the age of twelve years has also been added by this amendment. The punishment for such act is rigorous imprisonment for 20 years which may extend to imprisonment for life and also the offender can be punished with death penalty under Section 376AB. The punishment is given according to the gravity of the offence. Thus, for the first time, death penalty has been provided for the offence of rape.
- Moreover, two sections dealing with the punishment for gang rape on a woman below the age of sixteen year and twelve year, have been added by this amendment i.e. Section 376DA and 376DB respectively. The punishment in such cases has to be imprisonment of life and death penalty without any exceptions (in case of gang rape of a female below the age of 2 years).
- The Code of Criminal Procedure, 1973:
- If a person is accused of rape on a female of below the age of sixteen years, he shall not be granted anticipatory bail under Section 438 by a High Court or a Court of Session.
- This amendment provides procedure for speedy trial and investigation in cases of rape. The mandatorily time period given for investigation is within two months and the appeal in rape cases has to be disposed within six months.
- Section 439 was also altered by this amendment. First, a proviso has been inserted according to which, the High Court or the Session Court is under an obligation to provide notice to the public prosecutor within 15 days when it receives the bail application of an accused of raping a female under the age of 16 years. Secondly, a sub-section has been added which makes the presence of informant mandatory during the court proceeding of bail application filed by accused.
4. The Protection of Children from Sexual Offences Act, 2012: Section 42 of the Act which deals with alternative punishment has been amended to include Sections 376AB, 376DA, and 376DB
[i] (1970) 2 SCC 143.
[ii] (2017) 6 SCC 1.
[iii] Cri. Case No. 1228/2018.
By:- SAMPADA SHARMA
5th year, BBALLB
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