ABOUT THE AUTHOR
These notes have been made by Aryan K Singh a law student at University School of Law and Legal Studies, GGSIPU, New Delhi.
The word rape is derived from the Latin term Rapio, which mean ‘to seize’. Thus rape literally means a forcible seizure. It signifies in common terminology, “as the ravishment of a woman without her consent, by force, fear, or fraud” or “the carnal knowledge of a woman by force against her will.” In other words, rape is violation with violence of the private person of a woman.
Taking note of the inadequacy of law of rape and its failure to safeguard the rights of the innocent victims against the heinous crime, the Parliament in 1983 and 2013 extensively amended the law of rape so as to make the law more realistic.
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 ~ 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:—
First.—Against her will.
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. 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. Fifthly.—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 eighteen years of age.
Seventhly.—When she is unable to communicate consent.
Explanation I.—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 non-verbal 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 I.— 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.’
This section consists of the following:
Sexual intercourse by a man with a woman.
The sexual intercourse must be under the circumstances falling under any of the seven clauses of section 375.
A very important case that led to definite amendments in the section is Sakshi v. Union of India and Ors. (the Union of India, the Ministry of Law and Justice and the New Delhi Commissioner of Police).
Sakshi, an NGO focusing on violence against women, petitioned the Supreme Court of India to declare that “rape” under India’s criminal rape law (Indian Penal Code, or “IPC”, section 375) includes all forms of forcible penetration.
Sakshi claimed that the current interpretation of the law, limited rape to forcible penile/vaginal penetration only. The prosecution submitted that Section 375 IPC should be interpreted in the current scenario, especially in regard to the fact that child abuse has assumed an alarming proportion in recent times.
The words ‘sexual intercourse’ in Section 375 IPC should be interpreted to mean all kinds of sexual penetration of any type of any orifice of the body and not the intercourse understood in the traditional sense. The words ‘sexual intercourse’ having not been defined in the Penal Code, there was no impediment in the way of the Court to give it a wider meaning so that the various types of child abuse may come within its ambit and the conviction of an offender may be possible under Section 376 IPC. Sexual abuse of children, particularly minor girl, children by means and manner other than penile/vaginal penetration is common and may take the form of penile/anal penetration, penile/oral penetration, finger/vaginal penetration or object/ vaginal penetration.
It is submitted that by treating such forms of abuse as offences falling under Section 354 IPC or 377 IPC, the very intent of the amendment of Section 376 IPC by incorporating Sub-section 2(f) therein is defeated. The said interpretation is also contrary to the contemporary understanding of sexual abuse and violence all over the world.
The Court upheld the existing definition of rape as forcible penile/vaginal penetration only, refusing to include other forms of penetration within the ambit of rape as defined under IPC. The Court’s decision called on the Parliament of India to change the law, stating:
“The suggestions made by the petitioners [Sakshi] will advance the cause of justice and are in the larger interest of society. The cases of child abuse and rape are increasing at an alarming speed and appropriate legislation in this regard is, therefore, urgently required. We hope and trust that the Parliament will give serious attention to the points highlights by the petitioner and make appropriate legislation with all the promptness which it deserves.”
During the Sakshi case, the Court ordered the Law Commission of India to examine and respond to the issues that Sakshi raised. This exercise culminated in the 172nd Report of the Law Commission of India (on a review of rape laws, March 2000). The Report suggested that the offence of “rape” be substituted by “sexual assault,” making the offence gender-neutral and applicable to a range of sexual offences other than forcible penile/vaginal penetration.
As of today, the rape law in India under Section 375 stands amended and includes all forms of sexual assault and is not just limited to penile/vaginal intercourse or heterosexual intercourse.
RELEVANT CASE LAWS
State of Punjab v. Gurmit Singh
A young girl below the age of 16 years was abducted from her school by the three accused in a car, and she was threatened with death if she raised an alarm.
Despite her refusal, she was made to drink liquor. Then she was raped by each one of them in turn under the threat of being killed if she persisted in raising an alarm.
Due to the threat, she kept quiet. After repeatedly committing sexual assault on her, they left her the next morning near the place from where she had been abducted.
Surprisingly, the additional judge, Ludhiana acquitted all the accused on both counts of abduction and rape disbelieving the version of prosecutrix regarding rape and because of delay in FIR. Allowing the State appeal, and holding the accused persons liable for rape since at no point of time the prosecutrix willingly cooperated with the act, the Apex Court held that the sexual intercourse was against her will for which the accused are liable for committing rape under Section 376, IPC.
In addition to this, the Apex Court laid down the following guidelines for trial in such cases:
Delay in lodging FIR is not material when properly explained.
Testimony of victim in cases of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Court should find no difficulty in convicting the accused on prosecutrix’s testimony alone.
Trial of sexual offences should be in camera and invariably by a lady judge whenever available.
Court must restrain making observations that probably the prosecutrix is a girl of loose moral character.
Court is under an obligation to see that prosecutrix is not unnecessarily harassed and humiliated in cross-examination in case of rape trial.
State of Maharashtra v. Prakash
The Apex Court held that where a police constable and businessman had sexual intercourse with a rustic woman by beating her husband and threatening to put him in police remand.
The act falls under clause (3) of section 375 IPC.
The suggestion that the victim had consented to intercourse willingly is ruled out for the offence of rape.
It is not necessary that there should be actual use of force; a threat to use of force is sufficient.
MATHURA RAPE CASE
Tukaram v. State of Maharashtra
Mathura, an 18-year-old Harijan orphan girl was called to the police station on an abduction report filed her brother at the police station- Desaui Ganj in Maharashtra on 26th March 1972.
When they were about to leave the police station, Mathura was kept back at the police station in the late hours of the night by one of the constables, Ganpat, who was on duty.
She was taken to a toilet and raped. After him, another constable Tukaram tried to rape her but being too heavily drunk, did not succeed.
None of the two accused were held guilty for the following reasons:
There were no marks of injury on her person which show that the whole affair was a peaceful one and that the story of stiff resistance having been put up by the girl is all false.
The girl was not subject to any fear that must have led her to submit to the act.
The girl was not alone when Ganpat ordered her to stay and she could have resisted and appealed to her brother. Her conduct in meekly following Ganpat and allowing him to have his way with her to the extent of satisfying his lust in full, made them feel that the consent in question was not a consent which could be brushed aside as passive submission.
The judgment of the Supreme Court was widely criticised both inside and outside the Parliament as an extraordinary decision sacrificing human rights and a disgrace on women under the law and the Constitution.
Subsequent decisions of the Supreme Court tried to atone for what it had decided in the Mathura case.
Balwant Singh v. State of Punjab
The victim aged 19/20 years was forcibly taken in a car by the five accused persons and raped by each in a grove on the canal bank.
She was found lying unconscious under a banana tree near the canal bridge by her father.
She was medically examined and the report specified that she was raped by more than one person. It was held by the court that the absence of injuries on the back of prosecutrix does not make the prosecution case unbelievable.
The accused were five in number and the prosecutrix was a girl of 19/20 years.
She was not expected to offer such resistance as would cause injuries to her.
Bhupinder Singh v.Union Territory of Chandigarh
The complainant Manjit Kaur married the accused Bhupinder Singh, who she had met through work, in 1990 and started cohabiting with him in Chandigarh.
She became pregnant but accused got the fetus aborted in 1991.
When she was pregnant again in 1994, she met her husband’s two friends who told her that he was already married and had children from his first wife.
On being confronted her husband left her on the pretense of work and did not turn up even after she gave birth to a daughter. She made a complaint and he was held guilty of rape because prosecutrix married accused without knowledge of his first marriage.
The consent for cohabitation was given under the belief that the accused was her husband.
It was also held that delay in lodging complaint by prosecutrix couldn’t, in any event, wash away the offence because there was no consent.
Therefore, the Supreme Court refused to interfere with the order of conviction passed by the High Court.
Tulshidas Kanolkar v. State of Goa
The accused had sexual intercourse, repeatedly with a woman who was incapable of comprehending the vicissitudes of the act. Consequently, the girl became pregnant.
The additional session judge, holding the accused liable for rape under section 376 imposed a sentence of ten years of rigorous imprisonment along with a fine of Rs. 10000.
However, the High Court in appeal reduced the sentence to seven years and the appellant went in appeal against his conviction.
The Apex Court dismissed the appeal and held that for constituting consent there must be the exercise of intelligence based on knowledge of the significance and moral effect of the act and criticised the High Court for reducing the sentence to seven years where it should not have interfered.
Mana Ramchandra Jadhav v.State of Maharashtra
The age of consent was raised from 16 to 18 by the Criminal Law (Amendment) Act of 2013.
The prosecutrix left her mother’s house and joined the accused because her mother had turned down the proposal of her marriage with the accused on the ground that she was too young.
While she was with the accused he had sexual intercourse with her against her will.
The act of intercourse with the prosecutrix will be covered under this clause.