Offences and punishment for rape crime in India

Several people standing with a banner in hand to promote Stop Rape terrorism

Rape is the most common crime committed in India. According to the 2019 report of NCRB, rape was fourth on the list of most committed crimes. 32033 rape cases were filed across the country, an average of 88 daily points were registered.

Considered inferior to men, women have been consistently exploited by men and juveniles for centuries, and thus Crimes against women remained high in recent years. Three juveniles were arrested each day for rape, assault and violence against woman.

 In this article, I will discuss the legal meaning of rape briefly and its punishment.

Section 375 of IPC

Section 375 of IPC states a man is said to commit rape if he penetrates or inserts any object or manipulates any part of women’s body to cause penetration or applies his mouth to the vagina, urethra of a woman or makes her do with him or any other person.

The seven circumstances under which the above activities will be called rape are.

  1. Against her will.
  2. Without her consent.
  3. With her consent, when her consent has been obtained by putting her or any person she is interested in, in fear of death or of hurt.
  4. With her consent, when the man knows that he is not her husband and that her consent is given, she believes that he is another man to whom she is or believes herself to be lawfully married.
  5. With her consent when, at the time of giving such consent, because of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she cannot understand the nature and consequences of that to which she gives consent.
  6. With or without her consent when she is under eighteen years of age.
  7. When she is unable to communicate consent.

Consent for this section

Consent means an unequivocal ( leaving no doubt) voluntary agreement when the woman, by words, gestures or any form of verbal or non-verbal communication, communicates a willingness to participate in the specific sexual act. provided that a woman who does not physically resist the action of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

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Exception: If a man does sexual intercourse or a sexual act with his wife, who is above the age of 15, that will not amount to rape.

A black and white picture of Susan B. Anthony with her famous quote written as, "No man is good enough to govern a woman without her consent".
Source: Poem Fish

The Apex Court in Harpal Singh held that even if the girl of 14 is a willing party and invited the accused to have sexual intercourse with her, the accused would be liable for rape under this clause.

In Independent thoughts vs Union of India (2017), the Court increased the age from 15 to 18 years and set a limit that non-consensual sexual intercourse with a wife below 18 years would amount to the offence of rape.

Bhupinder Singh vs Union of Chandigarh

The victim had sexual intercourse with the accused, who promised to marry her. She got pregnant two times and undergone an abortion. After some time, she got to know about his wife, and he refused to marry her. Victim through petition appealed in the Court.

Court held that the accused had sexual intercourse with the victim in a state of fraud, and thus the consent of the victim is not a valid one, and the accused was held liable under Section 375.

Difference between consent and will of women

In the State of Uttar Pradesh vs Clottey Lala (2011), the Court stated that the expression against her will and without her consent might overlap, but they have different connotations and dimensions. The expression against her will would mean that man does the act despite her resistance and opposition. The other without her consent would represent an act done with deliberation.

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Punishment for rape

Section 376 of IPC states that if any person commits rape, he shall be punished with rigorous imprisonment of either description, which cannot be less than seven years but may be extended to life imprisonment with a fine.

A clown hanged and a quote is written saying, "They should be hanged to death or burnt alive".
Source: change.org

Some cases in which imprisonment for rape extend to ten years or imprisonment for life if rape is committed by a police officer or armed officer or public servant or rape is committed against women under sixteen or repeatedly commits rape on the same women.

Suppose rape is committed by a relative, guardian or teacher or a person in a position of trust or authority or against pregnant women. In that case, the accused shall be punished with imprisonment of not less than ten years.

Gang rape

Gang rape is defined in sec 376 D of IPC. Under this provision, whoever commits the offence of gang rape shall be punished with not less than 20 years of imprisonment but may extend life imprisonment and with a fine.

It is provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim. Fine imposed by the Court should be given to the victim.

In gang rape, even if one man rapes a woman, the act will be gang rape. The only ingredient required for gang rape is that a group should act with a shared intention.

If the offence of rape is committed by a person previously convicted under section 376, section 376 A and section 376 D, he shall be punished with death or imprisonment of life.

Cases related to rape

State of Punjab vs Gurmit Singh

  1. Delay in lodging FIR is not material when adequately explained.

2.Testimony of victim in cases of sexual assault is vital. Unless there are compelling reasons that necessitate looking for her statement’s corroboration, the Court should find no difficulty in convicting the accused on prosecutrix’s testimony alone.

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3.Trial of sexual offences should be on camera and invariably by a lady judge whenever available.The Court must restrain making observations that probably the prosecutrix is a girl of loose moral character.

The Court is under an obligation to see that the prosecutrix is not unnecessarily harassed and humiliated in cross-examination in case of a rape trial.

The Apex Court in Harpal Singh held that even if the girl of 14 is a willing party and invited the accused to have sexual intercourse with her, the accused would be liable for rape under this clause.

Mukesh & Anr. vs State for NCT of Delhi & Ors. (Nirbhaya Gang Rape Case) (2017)

This case is the landmark case which led to massive agitation among the public, this forced government to pass strict law and amendments were brought to rape provisions in 2013.

Court declared this case as rarest of the rare case, and the death penalty was awarded to the accused.

State of Maharashtra v. Vijay Mohan Jadhav and Ors. (Shakti Mills Gang Rape) (2019)

Facts: In this case, a photojournalist aged 22years, who was interning under an English magazine in Mumbai, was raped when she had gone to the Shakti mills compound near Mahalakshmi in south Mumbai. The accused had tied her up with belts and brutally raped her.

The brutality did not stop here. They took the photos of the victim and threatened to release them. The session’s Court awarded the accused a life sentence. It was further challenged by the victim and demanded the death penalty. The appellant court held that the accused would be liable for the death penalty if any leniency is shown towards the accused, it would create a mockery of justice.

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