Offence of Rape
By Shweta Nair
The word ‘Rape’ is derived from the Latin word ‘Rapio’ which means ‘to seize forcefully’. Even otherwise the normal idea of rape in a layman’s mind is that there is a strong element of force involved.
However, a perusal of Section 375 IPC reveals that this is far from the truth.
At the outset, it is to be noted that Section 375 begins with the words ‘A man is said to commit rape on a Woman’ Therefore, in India, the offence of rape can be committed only by a male.
It is also to be noted that according to Section 10, ‘Woman means a female human being of any age.’
The law relating to rape underwent major changes after the introduction of Criminal Law (Amendment Ordinance) which was the result of the hue and cry that happened after the Nirbhaya Rape case which took place in Delhi on 16th of December 2012.
The amendments to the IPC came into force from 19th March 2013. We shall therefore examine the offence of rape in two phases i.e., before and after 2013.
According to Section 375, the offence of rape was revealed if the man has sexual intercourse with a woman under one of the following circumstances:
Against her will
Without her consent
With her consent when her consent has been obtained by putting her or any person in which she is interested in fear of death or hurt.
With her consent when the man knows that he is not her husband but the consent has been obtained because she thinks she is another person to whom she is lawfully married.
With her consent when her consent has been given due to unsoundness of mind, intoxication or the administration by him personally or through another of some unwholesome or stupefying substance due to which she is unable to understand the nature and consequence of that which she is giving her consent.
With or without her consent when she is under the age of 16 years.
It is to be noted that in respect of clause 2 above, one should read it in light of section 90 which states that, consent is not consent as intended by any section of this code, if it is given by a person under fear of injury or misconception of fact.
Section 44 states that injury means harm of whatever nature illegally caused to a person in body, mind, reputation or property.
The punishment for the offence of rape is split up into 2 categories:
There is stricter punishment attracted by certain enhanced forms of rape being:
Rape of a pregnant woman
Rape of a girl below 12 years of age
Custodial Rape means rape of a woman in the custody of a police officer, staff of a jail or remand home, staff of a hospital.
After the case of Tukaram v. State of Maharashtra, the IPC was amended to introduce Section A, B, C, and D which makes sexual intercourse with a woman in custody ‘Not amounting to Rape’. Also punishable with up to 5 years imprisonment.
The Indian Evidence Act was also amended to the effect that in cases of custodial rape if the victim states that there was no consent, it shall be presumed that there was no consent.
When a woman is raped by one or more person constituting a group or acting in furtherance of a common intention. It is said to be Gang Rape.
Position after 2013:
The main change in the ingredients of rape is that ‘Sexual Intercourse is no longer requirement. Oral Sex, Anal Sex, inserting any part of the body or object into any part of the woman’s body would suffice as the physical act required to reveal the offence of rape.
The age of consent has been increased to 18 and hence the age for statutory rape is now 18 years.
In addition to the six circumstances which reveal rape, a seventh circumstance has been added I.e., ‘when she is unable to communicate her consent’. This is probably because of the increasing incidences of Date Rapes in the country. To the list of enhanced form of rape, new categories have been added- In custodial rape, the words relative, guardian, teacher, armed forces and person in position of trust and authority have been added.
Rape during Communal Violence
Rape of a girl below 16 years of age
Rape of a woman incapable of giving her consent.
Rape by a person in a position of control or dominance.
Rape of a mentally or physically disabled woman.
Rape during which the woman is maimed or disfigured or where her life was endangered.
The punishment for rape was changed from simple imprisonment to rigorous imprisonment for not less than 7 years and which may extend to life imprisonment and fine.
The punishment for rape which leads to woman going into persistent vegetative state was increased to death penalty.
In case of enhanced forms of rape, the words ‘Life Imprisonment’ was substituted with the words- Life Imprisonment which would mean the remaining part of the person’s natural life.
For gang rape, the punishment was rigorous imprisonment which would not be less than 20 years up to Life Imprisonment for the remaining part of the person’s life.
After certain very serious rape cases in India like the Unnao Case, the Amendment Ordinance of 2018 was passed which makes offence of rape punishable with rigorous imprisonment of not less than 10 years but which may extend for remaining part of a person’s life.
In gang rape, minimum punishment shall be 20 years or for the remaining of the person’s life. But death penalty also attracted.
Another important change is that the CrPC has been amended which states that in case of child rape (>16 years), anticipatory bail shall not be given and the investigation has to be completed within 3 months.