RAPE AND PUNISHMENT

INTRODUCTION

Rape is the most morally and physically deteriorating crime in society. Rape destroys the life of the victim. The victims not only suffer from physical pain for a lifetime but also suffer mentally. It is a permanent scar on the victim and it breaks the victim completely. Rape affects the physical and psychological issues to the victim. India has seen a large number of cases about rape. The National Crime Records Bureau, under the Union Ministry of Home Affairs, is responsible for collecting crime data as defined by the Indian Penal Code and other laws. The Indian Penal Code defines and provides for the punishment of rape. The article explores the meaning of rape, its punishment under the Indian Penal Code, 1860, the data statistics of rape cases in India and the few cases related to Rape.

DEFINITION OF RAPE

The term ‘Rape’ has been derived from the Latin word “Rapio” which refers to seize. Rape is forceful sexual intercourse with a person which causes immense physical as well as psychological hurt. Rape can occur with both male and female. But, the Indian Penal Code, 1860 contains gender-specific provisions in regards to Rape. The Chapter XVI of Indian Penal Code is ‘Of Offences Affecting the Human Body and Life’ and Section 375, 376 and 376 D is about Rape, Gang Rape, punishment, etc. The provision of rape under this chapter clearly states that rape is a heinous crime and it affects the life of a victim.

Section 375 of the Indian Penal Code has defined Rape. There must be sexual intercourse by a man with a woman. The term sexual intercourse has not been defined under Section 375. A man commits rape when he does the following acts:

• Penetration

If a man penetrates his penis into vagina, mouth, urethra or anus of a woman or makes her do the activity with him or any other person, it is included in the act of rape. It is immaterial how far the penetration occurs.

• Insertion

If a man inserts an object or any part of the body (not the penis) into the vagina, urethra, anus of a woman or makes her do the activity with him or any other person, it is included in the act of rape.

• Manipulation

If a man manipulates any part of the body of a woman to cause penetration into the vagina, urethra, anus or any part of a body of a woman or makes her do the activity with him or any other person, it is included in the act of rape.

• Application

If a man applies his mouth to the vagina, anus, and urethra of a woman or makes her do the activity with him or any other person, it is included in the act of rape.

These activities must fall under the seven clauses of Section 375:

• First Clause

The first clause refers to “against her will”. It operates when the woman is in her senses and is capable of consenting. The term ‘against her will’ refers to that the act is done even after the opposition or denial of the woman. In the case of State of Maharashtra v. M.N. Mardikar¹, the court held that a woman is entitled to privacy according to her wishes and likes. She is entitled to protect her person if an attempt is made to violate it against her wish.

• Second Clause

The second clause refers to “without her consent”. It operates when a woman is not in her senses to give rational consent. She might be under the influence of drugs, drinks, etc. There are examples which reflect the meaning of ‘without her consent’ such as, a woman in sleep, a woman of unsound mind, intoxicated woman, intercourse in misapprehension, etc. In the case of R v. Williams², a music teacher raped a girl of 16 years of age by telling her that this is an operation for producing her voice properly.

• Third Clause

If the consent is obtained by a woman by putting her or any other person whom she is interested, in fear of death, then it is not valid consent.

• Fourth Clause

This clause refers to when a woman gives her consent because she believes that the man is her husband. But, the man knows that he is not her husband. In the case of Bhupinder Singh v. Union Territory of Chandigarh³, consent of the complainant was obtained under the belief that Bhupinder was her husband and the court held the accused guilty of rape.

• Fifth Clause

The clause refers that if the consent obtained is by the reason of unsoundness of mind or intoxication or due to administration of some unwholesome or stupefying substance by him or through any other person, and while giving such consent is not able to understand the nature and consequences of the act for which the consent is given.

• Sixth Clause

This clause states that if a girl is below the age of eighteen years, the act would amount to rape whether it is done with her consent or without her consent. A girl below the age of eighteen years is not competent to give valid consent.

• Seventh Clause

This clause states the condition when the woman is unable to communicate consent.

Section 375 also contains some of the explanations which state that vagina include labia majora. The explanation 2 has defined the meaning of consent. Consent refers to a voluntary or willing agreement between the man and woman. The agreement may be in words, gestures or in any other form of verbal and non-verbal communication which is done to participate in a specific sexual act. The consent has to be active consent.

Exceptions

There are two exceptions to Section 375:

1. Medical Procedure

Any kind of medical procedure or intervention shall not constitute rape.

2. Wife not being under fifteen years of age

The sexual intercourse or act by a man with his wife is not rape. But, if the wife is under the age of fifteen years, then the sexual intercourse done by the husband amounts to rape. This section pays attention to the marital rape but with a condition that the girl should be under the age of fifteen years.

PUNISHMENT FOR RAPE

Rape is a heinous crime. It is a non-bailable offence. Section 376 of the Indian Penal Code, 1860 provides the punishment for rape. According to Section 376(1), whoever commits rape shall be punished with rigorous imprisonment of either description for a term of not less than ten years, and may extend to imprisonment for life, and shall also be liable to fine.

There are cases where the punishment is different than what is stated in Section 376(1). Such cases have been provided under Section 376(2). The cases are as follows:

• Rape by a police officer within the ‘limits of a police station in which the police officer is appointed’ or ‘in the premises of any station house’ or ‘on a woman in such police officer’s custody or custody of a police officer subordinate to such police station’.
• Rape by a public servant on a woman in his custody or any other subordinate public servant custody.
• Rape by a member of Armed Forces in the area where he is deployed.
• Rape by a person who is in management or the staff of jail, remand home or women’s or children institution or another place of custody.
• Rape by a person who is in the management or the staff of a hospital.
• Rape by a person who is relative, guardian or teacher or is in any fiduciary relationship with the woman.
• Rape by a person during communal violence.
• Rape by a person on a pregnant woman, or a girl under sixteen years of age, or on a woman incapable of giving consent.
• Rape by a person who is in a position of control or dominance over the woman.
• Rape by a person on a woman suffering from a mental disability or physical disability.
• Rape by a person repeatedly on the same woman.
• During the commission of rape, grievous hurt, bodily harm or any disfiguration occurs to the woman.

In all these cases, the punishment is rigorous imprisonment for a term which shall not be less than ten years and it may extend to imprisonment for life and shall also be liable to fine. The term ‘imprisonment for life’ refers to the remainder of a person’s natural life.

If rape is committed on a woman under the age of sixteen years, the person shall be punished with rigorous imprisonment for a term not less than twenty years and may extend to life imprisonment and shall also be liable for fine.

GANG RAPE

When a woman is raped by one or more than one person and it is done in the furtherance of a common intention, then it is known as Gang Rape. According to Section 376 D of the Indian Penal Code, every person included in the gang rape is deemed to commit the offence of rape and is punished with rigorous imprisonment for a term of not less than 20 years and may extend to life and shall also be liable of fine. The fine shall be paid to the victim and the amount of fine should be reasonable and just to meet the medical expenses and rehabilitation of the victim.

The case of ‘Mukesh and Another v. State of NCT of Delhi and Others^4’, the court held that the case comes rarest of a rare case and the dreadfulness of committing rape, the unnatural sex, insertion of iron rod in the private parts of the victim is undoubtedly brutal. The court held the accused guilty of gang rape and was given the death penalty. This case is also known as the Nirbhaya Case or 2012 Delhi Gang Rape Case.

STATISTICS

The crime report by the National Crime Records Bureau in 2018 stated that the conviction rate in rape was 27.2%, the filing of the charge sheet was 85.3% and the rape with murder was 291.⁵ According to government data, rape is reported every 15 minutes in India. According to the National Crime Records Bureau, every fourth rape victim is a minor and more than 50% of the reported cases fell in the category of age group 18 to 30 years. ⁶

CONCLUSION

Crimes are increasing day by day. The laws must be strictly implemented in regards to rape, sexual assault, murder and other heinous crimes. The ambit of Section 375 should be broadened and it should not be a gender-specific provision. The concept of marital rape should also be included because it also harms the woman and marriage should not be an excuse for marital rape. At this point, it is very much required that education should be provided to both male and female from their home itself that they should respect women. There should not be a misuse of the laws provided by the Parliament.

SOURCE:

¹ A.I.R. 1991 S.C.  207

² (1923) 1 K.B. 340

³ (2008) 3 Cri. L.J. 3546 (S.C.)

⁴ Criminal Appeal No.  609-610 OF 2017 (arising out of S.L.P. (Criminal) Nos. 5027-5028 of 2014)

⁵ https://www.jatinverma.org/the-summary-of-ncrb-crime-report

⁶https://www.indiatoday.in/India/story/rapes-in-India-offenders-victim-minor-data-ncrb-1635691-2020-01-10

Books referred:

1. Ratanlal & Dhirajlal: The Indian Penal Code (PB) 36^th Edition, 2020 Lexis Nexis
2. N. Mishra: The Indian Penal Code, Central Law Publications, 2017

This blog is written by Jyotsna Singh, Banasthali Vidyapith

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