Section 375 defines rape and Section 376 prescribes its punishment.
Definition of Rape
A man is said to commit rape when he has sexual intercourse with a woman:
375. Rape.-- A man is said to commit "rape" if he--
(a) 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
(b) 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
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) 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:
Firstly : against her will. Secondly : without her consent. Thirdly : with her consent obtained by putting her in fear of death or hurt. Fourthly : with her consent when he 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 due to administration of any stupefying substance, she is unable to understand the nature and consequences of that to which she consents. Sixthly : With or without her consent, when she is under eighteen years of age
Seventhly.When she is unable to communicate consent.
Explanation 1.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 1.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
The amended Law
Meaning and nature of rape
Mathura Rape case
The desired the approach of Court in sentencing
The physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not a merely physical injury but a deep sense of some deathless shame.
The law regulates social interests, and arbitrates conflicting claims and demands. The security of persons and property of the people is an essential function of the State. It could be achieved through the instrumentality of criminal law
Friedman in his Law in Changing Society stated that: “State of criminal law continues to be — as it should be—a decisive reflection of social consciousness of society.” Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be.
For instance a murder committed due to deep-seated mutual and personal rivalry may not call for penalty of death. But an organised crime or mass murders of innocent people would call for imposition of death sentence as deterrence. In Mahesh v. State of M.P.™, this court while refusing to reduce the death sentence observed in this case:
it will be a mockery of justice to permit these appellants [the accused] to escape the extreme penalty of law when faced with such evidence and such cruel acts.
To give the lesser punishment for the appellants [accused] would be to render the justicing system of this country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon.”
Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. This position was illuminatingly stated by this Court in Sevaka Perumal v. State ofT.N.™
Criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Inevitably these considerations cause a departure from just deserts as the basis of punishment and create cases of apparent injustice that are serious and widespread.Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences.
The practice of punishing all serious crimes with equal severity is now unknown in civilised societies.In Jashubha Bharatsingh Gohil v. State of Gujarat , it has been held by this court that in the matter of death sentence, the courts are required to answer new challenges and mould the sentencing system to meet these challenges. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence.
In Dhananjoy Chatterjee v. State ofW.B. , this court has observed that shock¬ingly large number of criminals go unpunished thereby increasingly encouraging the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment.
From Bachan Singh case553 and Machhi Singh case the principle culled out is that when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, the same can be awarded. It was observed:
The community may entertain such sentiment in the following circumstances:
(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.
(2)When the murder is committed for a motive which evinces total deprav¬ity and meanness; e.g. murder by hired assassin for money or reward; or cold¬blooded murder for gains of a person vis-a-vis whom the murderer is in a domi¬nating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority community,etc. is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of “bride burning” or “dowry deaths” or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(4)When the crime is enormous in proportion. For instance when multiple mur-ders, say of all or almost all the members of a family or a large number of per¬sons of a particular caste, community, or locality, are committed.
(5)When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.
If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so.
(c) Ingredients
The section has two ingredients:
(i) Sexual intercourse of a man with a woman.
(ii) It must be without her consent and against her will as has been specified in Clauses (1) to (6) of the section.
(d) Sexual intercourse
(i) What is sex?
Sex is the distinction between two types of humans and other kinds of animal life, namely male and female, a differentiation marked by physiological, biochemical and psychological features essentially connected with their respective reproductive roles and characteristics. The distinction has great legal importance.
(ii) Sexual instinct and conduct
The sexual instinct motivates much human conduct and strongly influences many aspects of social and cultural life. Rules regulating behaviour in relation to sex have been very common in legal systems from early times.
(iii)Rules for control
Legal rules concerning sex and sexual conduct are of various kinds. There are protective rules seeking to penalise sexual relations with females who do not con¬sent or are deemed incapable of consenting, rules seeking to prevent offences to the public, including public sexual activity, exhibitionism, nudity and near nudity, and rules seeking to maintain strict sexual morality, including extra-marital rela¬tions, incest, homosexuality, prostitution, transvestism and the like. The trend in recent years in the West has been to relax the rules on matters of private morality and some of the rules protecting public sensibilities, but maintaining others of the latter class.
(e)Determination of Sex
The sex to which an individual belongs is determined, in most cases decisively, by chromosomal distribution, having 22 pairs of non-sexual chromosomes plus in case of females an XX pair and in the case of males an XY pair.
(f)Transsexualism
Transsexualism is the condition in which a biologically normal person believes himself or herself to be of the other sex, and behaves that way. The surgical treat-ment or the so-called sex-change operations do not, in fact, change sex, but assist a person to appear to be of the sex to which he or she believes he or she really belongs.
(g)Behaviour and degrees of arousal
Most sexual behaviour in society is heterosexual, between one male and one female and involves various stages and degrees of arousal, variously called kiss¬ing, cuddling, necking or petting and finally coitus. In these what is permissible and what is not depends upon accepted customs and practices of the society and its stratum in which the parties live.
(i)Coitus
Coitus is the natural conveying of semen to the female reproductive tract. This word comes from Latin Coitio meaning a coming together. In other words, it is sexual intercourse.
(ii)Circumstances
By the term under “circumstances” is meant the circumstances shown by the six clauses contained in the second part of the section.
Rape is the forcible ravishment of a woman. The essence of this crime consists in the act being done against the will of the woman and without her consent. The rest of the clauses Thirdly to Sixthly are only explanatory of non-consent.
(h)Against her will: (Clause one)
A person is the best judge of his own interest and that one who suffers a harm or injury voluntarily has no cause to complain when it comes about. This common sense principle is expressed in the Latin maxim, Volenti non fit injuria.
An act is said to have been against the will of a woman when she is in full pos-session of her senses and reason and is aware of what is being done and objects to it or resists it.
(i)Without her consent: (Clauses two-three)
When a woman is incapable of knowing the nature of the act and thus legally unable to give a rational consent or being aware of its nature thinks that the act is being done under circumstances which make it an innocent act, this position occurs.
Against her will and without her consent are both mental conditions in a woman. The section differentiates between an act against will and an act without consent. But one has to note that all acts done against will are always without consent, however all acts done without consent may not be against will.
As held in Nafe Singh case , if a woman resists for sometime and thereafter resigns and no resistance is offered by her in the face of the inevitable, it does not mean that she has consented. It must mean that she felt after sometime of resist-ance that it was futile to do so and that is why she resigned.
Her consent, after the act is already done, is also no consent. Similarly that a woman is a harlot is no defence against this crime. Consent is a voluntary act and in such case it shows voluntary participation after having exercised a choice between resistance and assent. For this offence to exist it is also necessary on the part of a person to know that what he is doing is being done without the con¬sent of the woman and he means to do the act without her consent. There are cases wherein a woman does not really consent but her conduct is such that it would lead the person to believe that she consents to what is being done.
As per Section 90 of the Code, consent under fear of injury, or under a miscon-ception of fact, or of a person intoxicated or of a person of an unsound mind is no consent if they are unable to understand the nature and consequence of that to which they give consent. Consent obtained by fraud is too short to be true, as a mathematical formula is true, its value is nil.
The absence or presence of consent is gathered from circumstances. A sleep¬ing person can gitte no consent. Similarly, a woman of an unsound mind or an idiot or an intoxicated woman from defect of understanding can give no consent.
Consent is different from submission. The former is a voluntary, deliberative and conscious act denoting participation of a woman in the act done; the latter is under fear of hurt or death or terror and it is involuntary. Every consent involves submission but every submission is no consent, i.e. submission does not involve consent.
(j)Consent—before and after the Mathura case
Even before the law of rape was amended, a positive interpretation was given to “consent” in a rape trial by the Orissa High Court in 1982 in Bijoy Kumar Mohapatra v. State of Orissa™. In this case a girl studying in S.K.D.A. Women’s College, Rourkela was gang raped by four men.
The High Court of Orissa held that since the age of the girl was between 18 and 20, the question whether she had consented did not arise. “Consent must be voluntary. A mere inevitable compul¬sion, quiescence, non-resistance or passive giving in when volitional faculty is either crowded by fear or vitiated by duress, cannot be deemed to be consent.
Consent on the part of a woman as a defence to all allegations of rape, requires voluntary participation after having fully exercised the choice between the resistance and assent?'
The court held that the victim had been ravished brutally against her consent. Further it was held that the absence of injuries on the person of the victim girl may not be fatal to the prosecution and that corroborative evidence may not be an important component of judicial evidence in rape cases. The court however reduced the sentence of life imprisonment to one of 10 years’ which was not lower than the minimum of 10 years’ for gang rapes as later specified by the 1983 amendment.
Similarly in Harpal Sing case where a girl of 16 years’ was gang raped the court held that: “The fact that there is no injury and the girl is used to sexual inter-course is immaterial in a rape trial.”
These judgments are quite progressive while Mathura’s judgment ™ can be described to be disheartening. The above two judgments show that even before the amendment the law could have been interpreted progressively, if the court so wished. Of course uniformity in interpretation is wanting.
Against such progressive pronouncements we have Mohammad Habib592 and Ravindra Patil593 cases which are examples of our judiciary’s lack of appreciation of the law in proper perspectives.
By the 1983 amendment, minimum punishment of 10 years’ is provided for custodial rape, but it seems that this clause is also not taken seriously as the following judgments show.
In Bhai Singh v. State of Rajasthan594, for raping a Harijan girl of seven by a boy of 18, the court sentenced him for five years’ imprisonment only, on the ground that the boy was only 18 years’ of age. In Arjun Singh case595, the court convicted the rapist and punished him with an imprisonment till the rising of the court. Onappeal the HC directed that the proceedings against the accused be dropped as the accused was a child of 16 years’ when he committed the offence (but by the time of appeal he was a major). In Satya Veer v. State of Rajasthan wherein the accused was convicted under Section 376 for raping a 9 years old girl, a sentence of 10 years’ imprisonment was awarded.
(k)Conclusion
Consequently, youth would find it easier to rape young helpless girls and if this is the attitude of the High Courts showing compassion and mercy to young rapists, the amendment prescribing a minimum sentence would clearly be an eyewash!
In Vinod Kumar v. State of M.P. where an 11 year old girl was raped by a youth while another pinned her down on the floor and gagged her, the court awarded only five years’ imprisonment stating unabashedly that “Increasing cases of personal violence and crime rate cannot justify a severe sentence on youthful offenders.” What does this show? Court’s apathy to law or its failure of duty or an obstinacy to follow law or some anti-woman attitude? These and other cases- ' show a total violation of the amendment which clearly states that the minimum sentence should be 10 years’ imprisonment.
The courts do not seem to recognise the fact that whether a virgin, married or a prostitute, the right not to be raped is the fundamental right of every human being. To hold otherwise is adding insult to injury. The courts as a matter of fact must learn to delink rape from virginity and marriage.
At last the Supreme Court has taken a very stern view against leniency in State of M.P. v. Bala™, and ruled that the court cannot award a sentence of less than 10 years’ rigorous imprisonment “without assigning adequate and special reasons.”
(1)Clause fourthly
When a person knows that he is not the husband of the consenting woman but the woman gives consent because she believes him to be her husband, the consent given is not a real one. Under the circumstances the person becomes guilty of rape if he has sexual intercourse with such woman. A question may be asked as to when and how such a situation may arise?
The answer may be that sometimes it may happen that in dark of night a person goes to a woman and does the act, the woman cohabiting believing him to be her husband or it may happen that at the time of marriage the woman had not seen the face of her husband because of her veil and sexual intercourse takes place between them, the woman believing him to be her husband, or though they have married according to Hindu rites, the marriage is void due to non-fulfilment of certain conditions, and consequently they are not legal husband and wife. Now when the male knows this but the female does not know of it and the sexual intercourse takes place the male is guilty of rape because he knows that the woman’s consent is due to misconception of certain facts of which she is not aware and he himself is aware. Had she known such facts, she would not have consented. Under such circumstances the person is guilty of rape under clause Fourthly of Section 375.
(m)Clause fifthly
(See, discussion under Clauses 2 and 3). Where a man and a woman unite under a belief that they are legally married husband and wife Section 375 does not operate.
(n)Clause sixthly
The policy of law is to protect a girl of immature age against sexual intercourse. Consequently, connection with a precocious girl under 16 years’ of age would be rape, even though she consents to it. This is so because she is unable to understand the nature and consequences of that to which she consents.
In clause sixth the age limit was raised to 16 years’ and in the exception it was raised to 15 years’ by an amendment in 1949.
There is a presumption in English Law that a boy under 14 cannot commit rape,
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