Rape

Meaning of Rape Rape:  The word 'rape', which is derived from the Latin term rapio, means '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".1  Rape, according to Walker, 2 is the crime of a man having sexual intercourse per vaginam with a female not being his wife (unless they are separated) knowing that it is done without her consent or reckless as to whether she consents or not.  Rape is violation with violence of the private person of a woman, an outrage by all means.3  Rape is the crime, committed by a man, of forcing another person to have sexual intercourse with him, especially by the threat or use of violence.  It is an unlawful sexual intercourse by a man with his own wife below the age of fifteen or with any girl below the age of sixteen, or with any other woman above sixteen without her free consent, against her will or with consent obtained under certain unlawful circumstances.  It is ultimate violation of the self. It is deathless shame and should be treated as the greatest crime against human dignity.  The United Nations defines it as "sexual intercourse without valid consent".  The World Health Organization defined it in 2002 as "physically forced or otherwise coerced penetration – even if slight – of the vulva or anus, using a penis, other body parts or an object".

1

Nelson's Pakistan Penal Code, 7th Edn., (1983) Vol. II, p. 2014. Walker: Oxford Companion to Law,1980, p. 1031. 3 Phul Singh v. State of Haryana, AIR 1980 SC 249. 2

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Rape as defined by Section 375 of the Indian Penal Code The definition of rape given by Section 375 is as follows: ―A man is said to commit rape when he has sexual intercourse with a woman – 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 16 years of age. Sexual intercourse by a man with his own wife, if she is above 15 years of age is not rape. However, if she is under 15 years of age it is rape (exception to Section 375). Penetration is sufficient to constitute the offence of rape (explanation to Section 376).

Amendments made in Law of Rape The Parliament in 1983 extensively amended the law of rape so as to make the law more realistic.4 By the Criminal Law (Amendment) Act, 1983 sections 375 and 376, I.P.C. were extensively amended and certain more penal provisions were incorporated for punishing those who molest a woman under their custody or care.

4

The Government of India in 1979 referred to the Law Commission of India for revision of the law of rape, which submitted its report for changes both in substantive and procedural laws. A comprehensive Criminal Law (Amendment) BUI, 1980 was introduced in Parliament, which culminated into the Criminal Law (Amendment) Act 43 of 1983.

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Besides substantive law procedural provisions under law of Evidence and Criminal Procedure Code were also added to strengthen the law. Some of the important changes brought about by the Act 43 of 1983 and other provisions are listed below: 1. Consult of a woman of unsound mind: or under intoxication etc.: Before Amendment Act of 1983, there were five clauses in section 375, I.P.C. A new clause 'fifthly' has been inserted in place of the then existing clause 'fifthly', which has been renumbered as clause 'sixthly' to section 375, I.P.C. The new clause 'fifthly' to section 375 negatives the consent of the women for the purpose of the offence of rape, if the woman is of unsound mind, or is under the influence of intoxication at the relevant time. Such consent will not be considered as a valid defense and the accused will be held liable for the offence. 2. Intercourse with wife during judicial separation prohibited: Section 376A, I.P.C. makes sexual intercourse with one's own wife without her consent under a decree of separation punishable. 3. Custodial Rape: Section 376B to section 376D, I.P.C. comprise a group of sections that create a new category of offence, known as custodial rape which does not amount to rape because in such cases the consent of the victim is obtained under the compelling circumstances. Such persons occupy supervisory positions and take undue advantage of their authority. 4. Burden of Proof of innocence on accused: The Evidence Act, 1872 was amended by inserting section 114A drawing a conclusive presumption as to the absence of consent of the woman in case of prosecution of rape under section 376(2) clauses (a), (b) (c), (d), (e) and (g), I.P.C. shifting the burden of proof of innocence on the accused. 5. Prohibition of disclosure of identity of the victim: Section 228A, I.P.C.5 clause (1) as stated by open Court in Om Prakash v. State of Uttar Pradesh 6 prohibits the disclosure of the identity of victims in rape cases under sections 376, 376A, 376B, 376C or 376D, I.P.C. However, perhaps due to oversight in a major faux pas, the Supreme Court breached its own code of not naming a rape victim in its judgments in Munshi v. State of Rajasthan,7 pronounced on October 12, 2007.

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Section 2.28A, IPC added vide Criminal Law (Amendment) Act 43 of 1983. AIR 2006 SC 2214. 7 Times of India, November 5, 2007, p. 1. The Bench consisted of Justice S.B. Shinha and H.S. Bedi. The apex Court named the victim as many as 11 times in its six-page judgment, which reversed a Rajasthan High Court 6

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6. Trial in camera: Section 327, Cr. P.C., 19738 which confers the right of an open court trial has been amended making the provisions for trial of rape cases or an offence under sections 376A to 376D, I.P.C. in camera and prohibition of publication of trial proceedings in such cases without the prior approval of the Court.

Ingredients of Section 375 of the Indian Penal Code 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.

Sexual Intercourse Sexual intercourse is not defined in this section. To constitute this offence sexual intercourse by a man with a woman is necessary. It means a sexual intercourse which is ‗in the order of nature‘, by ―order of nature‘ here means where conception is possible if all other requirements are present. The expression ―sexual intercourse‖ used in section 375 is defined in the dictionary as heterosexual intercourse involving penetration of the vagina by the penis. This is the correct meaning and is approved by the Supreme Court in Sakshi v. Union of India.9 Coitus is the natural conveying of semen to the female reproductive tract. This word comes from Latin Coitio meaning a coming together.10 In other words, it is sexual intercourse. This section is gender specific only man can commit this offence not woman. Only woman can be the victim of the offence and man can be the accused. The term ‗woman‘ is defined in section 10. It means a female of any age. Thus, even a small female child can be a victim of this offence.

order acquitting a rape accused, Munshi, and upheld his conviction by the trial Court. In the process, the court forgot the self-imposed code put in place through a ruling in 2003 and reiterated in 2006. 8 Cr. P.C., 1973, sec. 327: Court to be open— (2) Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an offence under sections 376, 376A, 376B, 376C or 376D of the Indian Penal Code shall be conducted in camera. (3) Where any proceedings are held under sub-section (2), it shall not be lawful for any person to print or publish any matter in relation to such proceedings, except with the previous permission of the court. 9 2004 CrLJ 2881 SC. 10 Webster’s Seventh New Collegiate Dictionary, 1969, p.161.

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‗Man‘ as per the definition under section 10 of the Code, means a male of any age but in view of specific requirements of the section he should be sufficiently grown up for the purpose of sexual intercourse that differ from place to place. No specific age can be prescribed for that. Two things are relevant here: a. Desire for sexual intercourse. b. Errection is possible. If the two are there then he is following in this offence. Mere penetration is sufficient to constitute the offence of rape- Explanation to Section 375- As the explanation runs, the degree of penetration is immaterial and some penetration howsoever slight is essential. To constitute penetration it has to be proved that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little.11 It is not necessary that the hymen should be ruptured or that there should be emission of semen. Without some penetration, therefore, there can be no rape, though the act may amount to an attempt at rape.12 In Sakshi v. Union of India, 13 the Supreme Court held that by a process of judicial interpretation the provision of section 375, Indian Penal Code cannot be altered so as to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration finger/vaginal and finger/anal penetration and object/vaginal penetration within its ambit. Circumstances for the offence of rape 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. These circumstances are explained as follows:

11

Ghanashyam Misra, 1957 CrLJ 469. Das Bernard, 1974 CrLJ 1098 (Goa). 13 2004 CrLJ 2881 (SC). 12

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Against will of the woman- Clause (1) to Section 375 A man is guilty of rape if he commits sexual intercourse with a woman against her will, i.e., the act must have been done against her opposition to it. The word 'will' implies the faculty of reasoning power of mind that determines whether to do an act or not.14 The expression 'against her will' means that the act is done in spite of opposition on the part of the woman. An element of force or compulsion is present. It imports that the victim has been overpowered by the man. It shows that the man has used coercion against her. An act is said to have been against the will of a woman when she is in full possession of her senses and reason and is aware of what is being done and objects to it or resists it. Gurmit’s case: In State of Punjab v. Gurmit Singh,15 when the three accused after abducting the prosecutrix, subjected her to sexual intercourse forcibly, the apex Court held that the act was against her will and it amounted to rape within the meaning of section 375 clause (1) punishable under section 376,1.P.C. The prosecutrix (name withheld) a young girl below 16 years of age, was studying in the 10th class in Government High School, Pakhowal. On 30 March, 1984, at about 12.30 p.m. (noon) after taking test in Geography when the prosecutrix was going to the house of her maternal uncle Darshan Singh a blue ambassador car came from behind in which Gurmit singh, Jagjit alias Bawa and Ranjit Singh accused were sitting. The car stopped near her. Ranjit Singh accused came out of the car and caught hold of the prosecutrix by her arm and pushed her inside the car. Accused Jagjit Singh alias Bawa put his hand on the mouth of the prosecutrix, while Gurmit Singh accused threatened the prosecutrix that in case she raised an alarm she would be done to death. All the three accused drove her to the tubewell of Ranjit Singh where Gurmit Singh compelled the prosecutrix to take liquor, misrepresenting to her that it was juice. Her refusal did not have any effect and she reluctantly consumed liquor. Gurmit Singh then removed her salwar and also opened her shirt. She was made to lie on a cot in the kotha while his companions guarded the kotha from outside. Gurmit Singh committed rape upon her. She resisted and cried as she was suffering from pain but Gurmit Singh threatened to kill her if

14 15

State of Punjab v. Gurmit Singh, AIR 1996 SC 1393. Ibid.

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she persisted in raising alarm. Due to that threat, she kept quiet. After Gurmit Singh had committed rape upon her, the other two accused committed rape on her. Each one of the accused committed sexual intercourse with the prosecutrix during the night against her will. Next morning at about 6.00 a.m. again the three accused made her sit in that car and left her near about the place from where she had been abducted. Surprisingly, the Additional Judge, Ludhiana acquitted all the accused on both the counts of abduction and rape disbelieving the version of prosecutrix regarding rape and because of delay in filing of FIR, etc. Allowing the State appeal, and holding the accused persons liable for rape since at no point of time the prosecutrix willingly co-operated with the act, the apex Court held the sexual intercourse was against her will for which the accused are liable for committing rape under section 376,1.P.C. While expressing anguish over the lack of sensitivity on the part of the trial Court by casting unjustified stigma on a young girl below 16 years in a rape case, the apex Court laid down following guidelines for trial in such cases – i.

Delay in lodging FIR is not material when properly explained.

ii.

Testimony of prosecutrix (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 testimony alone.

iii.

Trial of sexual offences should be in camera and invariably by a lady judge wherever available.

iv.

Court must restrain making observations that probably the prosecutrix is a girl of loose moral character.

v.

Court must restrain making observations that probably the prosecutrix is a girl of loose moral character.

Without consent of the woman – Clause (2) to section 375 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.

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The essence of rape is absence of consent. Consent means an intelligent, positive concurrence of the 'will' of the woman. The policy behind exemption from liability in the case of consent is based on the principle that a man is the best judge of his or her own interest, and that no man will consent to what he or she considers injurious to his or her own interest, and if a man (includes woman) decides to suffer a harm voluntarily, he or she cannot complain of it when it comes about.16 But to absolve a person from criminal liability, consent must be given freely and it must not be obtained by fraud or by mistake or under a misconception of fact. Consent obtained by misrepresentation, fraud or under mistake is no consent: Flattery’s case: In Queen v. Flattery, 17 the accused was charged for rape upon Lavinia Thompson, a 19-year-old girl on 4th November, 1876. The girl, who was in ill health and subject to fits, visited the accused's clinic along with her mother and sought his advice for treatment. The accused, after examining the girl, advised her to have a surgical operation, to which she consented, and under pretence of performing it, had sexual intercourse with the girl. Held, the girl's consent would not excuse the accused from conviction. There was a misconception regarding the nature of the act and whatever consent was given by the girl was for the purposes of surgical operation and not for sexual intercourse and this fact was known to the doctor. The accused was held liable for committing the offence of rape. The court ruled out the defence of consent since it was given under a misconception of fact. William’s Case: Similarly, in Williams, 18 where the accused, a choirmaster had sexual intercourse with prosecutrix making her to believe that he is performing a surgical operation to improve her singing voice, was held guilty of rape. Consent was vitiated by fraud and it was obtained under a misconception, that the physical manipulation would provide her with extra air supply to improve her singing skill. In the above cases it is non-consent to sexual intercourse rather than the fraud of the doctor or choirmaster that makes the offence rape.

16

The provision is based on the common sense principle of volenti rum fit injuria, i.e., a person who voluntarily consents to an injury, he must bear the consequences and suffer the loss arising from acts to which he assented. See Herbert Brown, A Selection of Legal Maxims, 10th Edn., (1973) p. 181; Blacks Law Dictionary, 5th Edn., (1972) p. 1412. 17 1877 QBD 410. 18 (1923) 1 KB 240 (CCA).

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Linekar’s Case: In R. v. Linekar,19 where the accused had procured a woman, a part time prostitute, to have sexual intercourse with him by, promising to pay her £25 (Pound) never intending to pay was acquitted of the charge of rape on the ground that the prostitute, consented to sexual intercourse with the appellant. The fact of consent cannot be destroyed by being induced by the appellant's false pretense that his intention was to pay the agreed price of £25 for her services. Similarly, a man who promises a woman a fur coat in return for sexual intercourse with no intention of fulfilling the promise would not be regarded as committing rape. Flattery,20 and William,21 on the one hand and Linekar,22 and Fur case (illustration) on the other hand are distinguishable. In the former set of cases there was no consent to sexual intercourse (connection). The prosecutrix persuaded by the doctor that he is performing a surgical operation to cure her ailment and by the choirmaster to improve her singing skill that they agreed for the sexual act. "It is not consent to the sexual intercourse rather than the fraud of the doctor or choirmaster that makes the offence of rape. Whereas in Linker, and Fur case the prosecutrix agreed for sexual intercourse for a consideration, which was not fulfilled by the accused persons. Since there was consent on the part of the prosecutrix for sexual connection, the accused persons are not liable for rape. Nevertheless, they will be liable for breach of contract for specific performance. Suppression of Sexual Disease: Clarence’s Case: In a well-known case of R. v. Clarence23 the husband who knew that he was suffering from gonorrhea and his wife did not, deliberately had sexual intercourse with her with the result that the disease was communicated to her. A Full Bench court consisting of 13 judges by a majority of nine to four acquitted the husband of inflicting grievous bodily harm under section 2024 and causing an assault under section 4725 of the Offences Against Person Act, 1861. Distinguishing Flattery and Williams from Clarence, Stephen, ]. said:

19

(1995) 3 All ER 69 (Court of Appeal). (1877) 2 QBD 410 CCCR. 21 (1923) 1 KB 340 CCA. 22 (1995) 3 All ER 69 (Court of Appeal). Judgment overruled by section 1 to Sexual Offences Act, 2003. 23 (1888) 22 QBD 23. 24 Section 20: Inflicting bodily injury with or without weapon: "Whoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person... shall be guilty of misdemeanor..." 20

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―Consent to surgical operation or examination is not a consent to sexual connection or indecent behaviour. Consent to connection with husband is not consent to adultery. The act of intercourse between a man and a woman cannot in any case be regarded as the performance of a contract... The woman's consent here was sex full and conscious as consent could be. It was not obtained by any fraud either as to the nature of the act or as to the identity of the agent". Tabassum: In a Canada case Tabassum,26 two judges have said that the common law has changed since Clarence. It was held that mistake as to the quality of act negatives consent and the offence of rape is significantly extended. In Clarence, the wife was aware of the nature of the act-sexual intercourse, but surely she was not aware of its quality. Consent in cases concerning the transmission of sexual diseases: Rv. Dica27: In a highly significant decision the Court of Appeal in R. v. Dica28 (2004) have ruled that reckless infection of HIV through consensual sexual intercourse amounts to Grievous bodily harm. This occurred in the context of a defendant, knowing that he himself was HIV infected, recklessly transmitting that disease through consensual sexual intercourse to two ladies who did not know of, and did not consent to, the risk of infection. The effect is to finally overrule the antiquated case of R. v. Clarence29, (1888) which has stood for well over a hundred years. Consent and submission—Distinguished: Rao Harnam Singh’s Case: There is a difference between consent and submission. As stated by the Punjab High Court in Rao Harnam Singh v. State

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an act of helpless

resignation in the face of inevitable compulsions is not a consent in law. On the evening of 18th August, 1957, Kalu Ram tenant of the accused was required to provide his wife Mrs. Surti, aged 19 years to satisfy the carnal (knowledge) lust of the accused Rao Harnam Singh and his guests on the eve of entertainment party arranged on the occasion of transfer of Ch. Mauji Ram, Dy. Superintendent, Jail, Gurgaon. 25

Section 47: Assault occasioning bodily harm-common assault: "Whoever shall be convicted upon an indictment of any assault occasioning actual bodily harms shall be liable... to be kept in penal servitude." 26 (2000) 2 Cr AP 328. 27 (2004) EWCA Crim 1103. 28 Ibid. 29 (1888) 22 QBD 23. 30 AIR 1958 Punj 123.

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The girl protested vehemently against this outrageous demand, but under pressure of her husband, she was induced to surrender her chastity. Three accused persons—Rao Harnam Singh, Ch Mauji Ram and Balbir Singh ravished her during the night and she died almost immediately. Her shrieks were heard by some advocate living in the neighbourhood. Refuting the defence contention, that the girl was a consenting party and she surrendered her body to the three persons willingly and with the approval of her husband, the High Court while holding the accused liable for the offence of rape has very nicely, distinguished between 'consent' and 'submission', as shown below – i.

A mere act of helpless resignation in the face of inevitable compulsion, quiescence, (still) non-resistance, passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be "consent" as understood in law.

ii.

Consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent'.

iii.

Submission of her body under the influence of fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent.

iv.

Consent of the girl in order to relieve an act, of a criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure.

v.

A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained, possession of her physical and moral power to act in the manner she wants. Consent implies the exercise of a free and untrammelled (not hampered) right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former.

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Consent procured by putting the woman under fear to death or hurt is no consent in law – Clause (3) to Section 375 Where a man has sexual intercourse with a woman 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; he is guilty under this clause of committing rape. Under this clause the prosecution must prove that the offender had put either the victim or any person in whom she is interested in fear either of death or of hurt and her consent was obtained because of this fear. Before the Criminal Law (Amendment) Act, 1983 came into existence on December 25, 1983 the words 'or any person in whom she is interested' did not exist in this clause. Prakash’s Case: In State of Maharashtra v. Prakash, 31 the Apex Court rightly 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 within clause (iii) to section 375. Suggestion that the victim Nirmala, 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 or use of force is sufficient. In Harpal Singh v. State of H.P.,32where 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 intercourse is immaterial in a rape trial”. Mathura: In Tukaram v. State of Maharashtra,33 popularly known as Mathura rape case, the Apex Court held that the fear which the clause 'thirdly' speaks of is negatived by the circumstances. The court held that the victim's failure to appeal to companions and her conduct in meekly following the constable (accused) and allowing him to have his way to the extent of satisfying his lust amounts to consent for the sexual intercourse. Mathura, an 18-year old Harijan orphan girl was called to the police station on an abduction report filed by 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 by Ganpat. Then another constable, Tukaram, molested and 31

AIR 1992 SC 1275. (1981) 2 SCC 560. 33 AIR 1979 SC 185. 32

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tried to rape her, but being too heavily drunk did not succeed. It was alleged that the two constables, while on duty, had bolted the doors of the police station from inside and plunged the place into darkness. The Sessions Judge acquitted the accused, on the ground of tacit consent, of the charge of rape for sexual intercourse between Ganpat and Mathura at the police station. On appeal, the Bombay High Court (Nagpur Bench) reversed the finding of the Sessions Judge and found Ganpat guilty of rape and Tukaram guilty for molesting the woman. The High Court rightly distinguished between 'consent' and 'passive submission', and held that mere passive or helpless surrender of the body and its resignation to the other's lust induced by threats or fear cannot be equated with desire or will, nor furnish an answer by the mere fact that the sexual act was not in opposition to such desire or volition. However, the Supreme Court reversed the finding of the High Court. Allowing appeal the apex Court observed that Mathura was subjected to no fear of death or hurt, which may have led her to submit to the act and that there were no marks of injury on her person, which showed that the whole affair was a peaceful one and that the story of stiff resistance having been put up by the girl was totally false. It further observed that Mathura 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 to 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 Parliament as an extraordinary decision sacrificing human rights and a slander (disgrace) on women under the law and the Constitution. There was considerable public resentment and strong protests, by social scientists, jurists, judges and scholars in general, and women organisations in particular against the verdict. Taking a serious note of the rare degree of sensibility of public criticism of the law and its failure to safeguard the rights of the innocent victims of rape provisions relating to law of rape as stated earlier were extensively amended in 1983 vide Criminal Law (Amendment) Act 43 of 1983 to nullify the effect of the Supreme Court's verdict in Mathura case.

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Consent accorded under a misconception that the person is husband of the woman is not a valid consent – Clause (4) to Section 375 Where a man has sexual intercourse with a woman with her consent when he knows that he is not her husband but she has given her consent because she believes that he is another man to whom she is, or believes herself to be, lawfully married, it amounts to rape under the fourth clause. Knowledge on the part of the man that he is not the husband of the woman with whom he is having sexual intercourse and that she has given her consent because she believes him to be another man who is her husband is the essential requirement of this clause. It Bhupinder Singh v. Union Territory of Chandigarh,34 consent for sex relations was given by the prosecutrix under the belief that the accused was her husband. The prosecutrix had married the accused without knowing that he was already married. The Supreme Court held the accused guilty of rape under the fourth clause of Section 375 of the Code.

Consent procured of a woman of unsound mind or under the influence of intoxication, etc. – Clause (5) to Section 375 According to the fifth clause of this section a man is guilty of committing rape if he has sexual intercourse with a woman with her consent, when, at the time of giving such consent, by reason of either unsoundness of mind or intoxication or the administration by him either personally or through any other person of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. This clause was previously not there in this section and was inserted by the abovementioned 1983 Act while the old fifth clause was renumbered in the present section as sixthly. Tulshidas Kanolkar’s Case: A girl whose mental faculties were undeveloped cannot legally give consent the case of Tulshidas Kanolkar v. State of Goa,35 is a classic example when the base instinct of the appellant over took his moral values and human sensitivity and he ravished the unsuspecting victim incapable of comprehending the vicissitudes of the dastardly act, not once, but several times resulting in the girl becoming pregnant. Additional Session Judge, Panji 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. 34 35

2008 CrLJ 3546 SC. (2003) 8 SCC 590.

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However, the High Court in appeal reduced the sentence to seven years. Hence appellant went in appeal to Apex Court against his conviction. Dismissing the appeal, the apex Court held, where such a girl was ravished by accused several times, it could not be said that victim had suffered sexual intercourse with consent. For constituting consent there must be exercise of intelligence based on the knowledge of the significance and the moral effect of the act. Consent is different from submission as every consent involves a submission but the converse does not follow. In law, an act of helpless resignation in the face of inevitable compulsion, quiescence, nonresistance or passive giving in when the faculty is either clouded by fear or vitiated by duress or impaired due to mental retardation or deficiency, held, cannot be considered to be consent. It has to be a conscious and voluntary act. Criticizing the High Court for reducing the sentence to seven years from 10 years, the apex Court said that it should not have interfered in the sentence. And the court suggested to the Government amendment of law and provided a minimum of ten years of sentence in case of rape of a mentally challenged or deficient woman as in case of a woman below 12 years under sub-clause (f) to clause (2) to section 376 IPC since the gravity of the offence in such a case is more serious and a woman of this type are more vulnerable to sexual abuses by unscrupulous people.

Consent of a girl under 16 not valid in law – Clause (6) to Section 375 A woman under sixteen is considered incapable of giving consent for sexual intercourse. 36 The apex Court in Harpal singh v. State of H.P.37 held that even if the girl of fourteen is a willing party and invited the accused to have sexual intercourse with her, the accused would be liable for rape under this clause.

Punishment for rape – Section 376 Section 376 - Punishment for Rape: 1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less 36

The age limit was initially ten was raised to twelve in 1891, from ten to fourteen in 1935 and finally to sixteen in 1949 by Act VII of 1949. 37 AIR 1981 SC 361.

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than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. 2) Whoever,— a) being a police officer commits rape— i.

within the limits of the police station to which he is appointed; or

ii.

in the premises of any station house whether or not situated in the police station to which he is appointed; or

iii.

on a woman in his custody or in the custody of a police officer subordinate to him; or

b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or e) commits rape on a woman knowing her to be pregnant; or f) commits rape on a woman when she is under twelve years of age; or g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

16

Explanation 1.—Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection. Explanation 2.—"Women's or children's institution" means an institution, whether called an Orphanage or a home for neglected woman or children or a widows' home or by any other name, which is established and maintained for the reception and care of woman or children. Explanation 3.—"Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation. In 1983 a drastic change was brought about in punishment of rape so as to deter people, from committing such a heinous crime. Section 376 has been divided into two sub-sections to fix punishment taking into account gravity and special nature of the case in question. This section has two parts and three explanations. Part one punishes a rapist, who does not fall under part two, with ai.

minimum punishment of imprisonment which shall not be less than 7 years but which may be for life or

ii.

for a term which may extend to 10 years and also fine.

iii.

If a man raped his own wife who is under 12 years of age, he shall be punished with imprisonment up to 2 years or fine or both.

If a sentence of less than 7 years is to be imposed the court has to state reasons thereof. Part two of the section has seven clauses: Clauses (a) to (g). These clauses enumerate the cases of custodial rape, rape on a pregnant woman, rape on a girl under 12 years of age and gang rape. Punishment for these types of rapes is minimum imprisonment of 10 years which may in suitable cases extend to life imprisonment and fine. For imposing less than 10 years' imprisonment the court is required to state reasons as per proviso in part two. Explanation one supplies meaning to gang rape and Explanations two and three explain the meaning of "Women's or Children's Institution" and "Hospital". Clauses (a) to (d) are the cases of custodial rape. 17

Mitigating circumstances - Adequate and Special Reasons: The proviso to section 376, I.P.C. has given discretion to the courts to award a lesser sentence than the minimum prescribed for rape when there exists 'special and adequate reasons' so that injustice might not be done to an accused in a particular case. Whether there exists "any special and adequate reasons" would depend upon a variety of factors and the particular facts and circumstances of each case. No hard and fast rule can be laid down in that behalf of universal application. Gopal’s case: In T.K. Gopal @ Gopi,38 the appellant was found guilty of raping a child of one and half years and sentenced to 10 years rigorous imprisonment. After undergoing a sentence of nine years the appellant filed an appeal before the apex Court for release on compassionate ground. Allowing the appeal, the apex Court held that having regard to the extenuating circumstances that the appellant's two daughters have come of age and are to be married, the present period of incarceration of the appellant in jail for nine years is enough and he should not be made to further suffer the consequences of his bestiality. Krishnappa’s case: In State of Karnataka v. Krishnappa,39 the question was whether the High Court was justified, in the circumstances of the case, to reduce the sentence of 10 years rigorous imprisonment imposed by the trial court on the respondent for an offence under section 376, I.P.C. to 4 years rigorous imprisonment while maintaining his conviction and sentence for offences punishable under sections 254, 323, 341, 448 and 506 of Indian Penal Code. Accused was a married man of 49 years of age having his own children and the victim of his sexual lust was an innocent helpless girl of 7/8 years of age at that time. The medical evidence provided by doctor showed the cruel nature of the act. The trial court had, therefore, opined that because of the cruel nature of the act, the accused was not entitled to any leniency. The High Court, however, differed with the reasoning of the trial court in the matter of sentence and reduced the sentence on the ground that the accused was "chronic addict to drinking" and had committed rape on the girl while in a state of "intoxication" and that his family comprising of "an old mother, wife and children" were dependent upon him.

38 39

T.K. Gopal alias Gopi v. State of Karnataka, (2000) 3 Supreme 706 (SC). AIR 2000 SC 1470.

18

Restoring the sentence of ten years awarded by the trial court, the apex Court held these factors did not justify recourse to the proviso to section 376(2). The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. Sundara Rao’s case: In Bodem Sundara Rao 40 the prosecutrix, aged between 13 and 14 years was sexually assaulted by the respondent in broad day light on 16-2-1995. The prosecutrix was carrying lunch for her father, who was grazing cattle in the fields when the respondent all of a sudden caught hold of her and committed rape on her despite her protestations. The trial court after appraising the evidence on the record found the respondent guilty of an offence under section 376, I.P.C. and imposed the sentence of ten years' rigorous imprisonment. However, the High Court in appeal while maintaining conviction reduced the sentence to 4 years considering the sentence of 10 years being on higher side. While allowing the appeal and enhancing the sentence from four years rigorous imprisonment to the minimum of 7 years rigorous imprisonment prescribed under section 376 sub-section (1), I.P.C., the Court said that: 'In recent years, we have noticed that crime against women are on the rise. These crimes are an affront to the human dignity of the society. Imposition of grossly inadequate sentence and particularly against the mandate of the Legislature not only is an injustice to the victim of the crime in particular and the society as a whole in general but also at times encourages a criminal. The courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to the society's cry for justice against such criminals. The courts must not only keep in view the rights of the criminals but also the rights of the victim of crime and the society at large while considering imposition of the appropriate punishment. The heinous crime of committing rape on a helpless 13/14 years old girl shakes our judicial conscience. The offence was inhumane. There are no extenuating or mitigating circumstances available on the record, which may justify imposition of sentence less than the minimum prescribed by the Legislature under section 376(1) of the Act'. 40

State of Andhra Pradesh v. Bodem Sundara Rao, AIR 1996 SC 530.

19

Balu’s case: In State of Madhya Pradesh v. Balu,41 (2005) the apex Court held that section 376, IPC imposes an obligation on the part of the Court to impose a minimum sentence of seven years of imprisonment in case of rape, but for 'adequate and special reasons' rerecorded by the Court for reducing the minimum mandatory sentence. The Session Judge convicted the accused a boy of seventeen years for having committed rape on one Kusumbai a minor aged 13 years and sentenced him to seven years of rigorous imprisonment. However, the High Court while confirming the conviction reduced the sentence of imprisonment to the period already undergone which was about 10 months on the ground that the accused was a young boy of 17 years of age and an illiterate villager and the incident took place 16 years earlier and both the accused and respondent have since married. Allowing the State appeal and restoring the original sentence of seven years awarded by the Sessions Court, the apex Court said: "Having found that the respondent has committed rape of a minor, to reduce the sentence on the ground that the accused was either 17 years or 19 years of age or that the accused is an illiterate villager coming from a rural area is neither adequate nor special reason contemplated under section 376, IPC. The sentence of 10 months' imprisonment for an offence punishable under section 376 is ridiculously low and is not commensurate with the gravity of the crime. The sympathy shown by the High Court is wholly misplaced and is likely to send wrong signals.‖ Leniency in Punishment in Sexual Offences is against public interest.—Puttaraja: The apex Court in a recent case of State of Karnataka v. Puttaraja,42 (2004) speaking through Justice Arijit Pasayat, said that a rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e., her dignity, chastity, honour and reputation. The depravation of such animals in human form reaches the rock bottom of morality when they sexually assault children, minors and a woman in the advance stages of pregnancy (as in the present case). On 21st August, 1985, the accused raped the victim in the presence of her husband, unmindful of the shattering mental trauma suffered by the prosecutrix. The accused was found guilty under section 376,1.P.C. for rape by the trial Court and sentenced to 5 years' of 41

(2005) 1 SCC 108. AIR 2004 SC 433.

42

20

imprisonment, though the minimum sentence prescribed is 7 years and fine of Rs. 2,000 under section 376, IPC for rape. However, the High Court of Karnataka reduced the sentence to the period already undergone which was merely 46 days for reasons that the accused is a cooli, agriculturist, young man of 22 years and that the occurrence took place in the year 1985 (approximately 20 years earlier) even without indicating any reason for reducing the prescribed minimum sentence. Restoring the sentence of 5 years imposed by the trial Court, apex Court said that 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. Corroboration not sine qua non (necessary requirement) for convictions.— As a general proposition of law a court requires sufficient and convincing evidence before determining the guilt of accused and convicting him for the offence. The Court therefore must, as a matter of prudence, except where the circumstances make it safe to dispense with it, get all the evidence corroborated (supported) before holding the accused liable for the crime. However, if the judge is convinced about the guilt of the accused, the Court need not insist on the requirement of corroboration in a particular case or set of cases. For instance, the Supreme Court of India on more than one occasion has said that corroboration is not the sine qua non (a necessary requirement) for a conviction in a rape case. Hirjibhai’s Case: In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat43 the appellant, a government servant was found guilty of serious charges of sexual misbehaviour with two young girls (aged about ten or twelve) and convicted for attempt to rape under section 376 read with section 511, I.P.C., outraging the modesty of a woman (section 354) and wrongful confinement (section 342) by the Session Court as well as the High Court. As regards the need for insisting on corroboration to the testimony of the prosecutrix in a sexual offence as insisted upon by the defense, while dismissing the appeal the apex Court said that in the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury.

43

1983 CrLJ 1096.

21

The Court questioned: Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated traditional society. The Court outlined following reasons for not insisting on corroboration: 1. A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. 2. She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends and neighbours. 3. She would have to brave the whole world. 4. She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home. 5. If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. 6. It would almost inevitably and almost invariably result in mental torture and suffering to herself. 7. The fear of being taunted by others will always haunt her. 8. She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is a taboo. 9. The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy and disrepute. 10. The parents of an unmarried girl as also the husband and members of the husband's family of &. married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. 11. The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. 12. The reluctance to face interrogation by the investigating agency, to face the court, to face the cross-examination by counsel for the culprit, and the risk of being disbelieved, act as a deterrent.

22

Sexual intercourse not amounting to rape – Sections 376A to 376D Section 376A: Intercourse by a man with his wife during separation.— Whoever has sexual intercourse with his own wife, who is living separately from him under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. This section, added in the Code by the Criminal Law (Amendment) Act, 1983, makes sexual intercourse by a man with his wife during separation a punishable offence. It says that whoever has sexual intercourse with his own wife, who is living separately from him either under a decree of separation or under any custom or usage, without her consent shall be punished with simple or rigorous imprisonment for a term extending up to two years and shall also be liable to fine. The section is attracted when a man has sexual intercourse with his own wife but without her consent and when she is living separately from him either under a decree of separation or under any custom or usage. The offence under this section is non-cognizable and bailable, and is triable by court of session. To invoke section 376A, I.P.C. following conditions must exist, viz., i.

Sexual intercourse is committed by a man with his own wife;

ii.

When the wife is living separately under a decree of judicial separation; and

iii.

Such sexual intercourse must be without the wife's consent.

Sections 376B to 376D, I.P.C. comprise a group of sections that create a new category of sexual offences which do not amount to rape, because the consent of the victim is given in such cases, but under compelling circumstances. In fact, these offences are committed by those persons who happen to occupy a supervisory position and power in the institution under their control and jurisdiction. Such persons take undue advantage of their authority and position and obtain the consent of the victim by inducing or seducing her for sexual intercourse. Such offences have been designated as custodial rape.

23

Section 3767B: Intercourse by public servant with woman in his custody.— Whoever, being a public servant, takes advantage of his official position and induces or seduces, any woman, who is in his custody as such public servant or in the custody of a public servant subordinate to him, to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine. This section, added in the Code by the Criminal Law (Amendment) Act, 1983, makes sexual intercourse by a public servant with a woman in his custody under certain circumstances a punishable offence. It says that whoever, being a public servant, takes advantage of his official position and either induces or seduces, any woman, who is either in his custody as such public servant or in the custody of a public servant subordinate to him to have sexual intercourse with him, and such sexual intercourse does not amount to rape, shall be punished with simple or rigorous imprisonment for a term extending up to five years and shall also be liable to fine. The offender under this section must be a public servant. He must take an advantage of his official position and induce or seduce a woman to have sexual intercourse with him. Such woman must either be in his custody as such public servant or in the custody of a public servant subordinate to him. Such sexual intercourse must not amount to rape. Section 376C: Intercourse by superintendent of jail, remand home, etc.— Whoever, being the superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and induces or seduces any female inmate of such jail, remand home, place or institution to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine. Explanation 1.—"Superintendent" in relation to jail, remand home or other place of custody or a women's or children's institution includes a person holding any other office in such jail, remand home, place or institution by virtue of which he can exercise any authority or control over its inmates.

24

Explanation 2.—The expression "women's or children's institution" shall have the same meaning as in Explanation 2 to sub-section (2) of section 376. Section 376C, I.P.C. punishes sexual intercourse by a superintendent of a jail, remand home, etc., with inmates in such institution. To attract section 376C, I.P.C. the following conditions must be satisfied, viz.— i.

The accused is either a superintendent or manager of a jail, remand home, or other place of custody established by or under any law;

ii.

The accused should take undue advantage of his official position;

iii.

The accused should induce any female inmate of such institution to have sexual intercourse with him;

iv.

Such sexual intercourse shall not amount to the offence of rape.

Punishment may extend upto 5 years and fine. Section 376D: Intercourse by any member of the management or staff of a hospital with any woman in that hospital.— Whoever, being on the management of a hospital or being on the staff of a hospital takes advantage of his position and has sexual intercourse with any woman in that hospital, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine. Explanation.—The expression "hospital" shall have the same meaning as in Explanation 3 to sub-section (2) of section 376. Section 376D, I.P.C. is directed against the management or staff of a hospital committing sexual intercourse with a woman in that hospital taking undue advantage of his position. Punishment may extend upto 5 years of imprisonment and fine. To attract the section the following ingredients must be established, viz.— i.

Accused should be on the management or on the staff of a hospital;

ii.

The accused should take undue advantage of his official position;

iii.

The accused should have sexual intercourse with a woman in that hospital; and

iv.

Such sexual intercourse should not amount to the offence of rape.

25

Latest Judgments Rajendra Pralhadrao Wasnik vs. The State Of Mahrashtra44 Facts of the case: Mahendra Namdeorao Wasnik was living with his wife, three children and parents in Village Asra. He used to go to Village Tarkheda for earning his livelihood at the thresher of one Zafarbhai. Normally, he used to return to his village at about 10.00 p.m. after doing his day's work. On 2nd March, 2007, he left his house at 7.00 a.m. and returned from his work at about 9.00 p.m. Upon his arrival, he was informed by his wife Kantabai Wasnik that at about 4.00 p.m. one person, whose name she did not know, had come to the house and after taking tea, he left. The said person had again come at about 6.30 p.m. On his second visit, he told that he would take out their daughter, namely Vandana, to get her biscuits. After talking to the mother of Vandana, the accused had taken Vandana for purchasing biscuits but never brought her back to her house. Having learnt this, he started searching for his daughter Vandana along with others, but they were unable to find her. On 3rd March, 2007 at about 8.00 a.m. when he was going to the Police Station for lodging the report, he saw that some persons had gathered in the fields of Pramod Vitthalrao Mohod. He went there and saw the dead body of his daughter in that field. The dead body of Vandana was lying in a nude condition and there were injuries on her person. It was on revealed from his wife that he suspected that the accused was the person who was a resident of Village Parlam and had taken away his daughter. Judgments: The Trial Court found him guilty of rape and murder. He was awarded with punishments of life imprisonment for the offence under section 376(2)(f) of IPC and death sentence for murder under section 302 of IPC. The High Court upheld both the sentence as well as the conviction. The Supreme Court while confirming the death sentence observed that ―the crime committed by the accused is heinous. In fact, it is not heinous simplicitor, but is a brutal and inhuman crime where a married person, aged 31 years, chooses to lure a three year old minor girl child on the pretext of buying her biscuits and then commits rape on her. Further, obviously intending to destroy the entire evidence and the possibility of being identified, he kills the minor child. It can hardly be even imagined that what torture and brutality the minor child must have faced during the course of commission of this crime. All her private parts were 44

2012 MANU 160 SC.

26

swollen and bleeding. She was bleeding through her nose and mouth. He went to the extent of giving bites on her chest. The pain and agony that he must have caused to the deceased minor girl is beyond imagination and is the limit of viciousness. The minor child was helpless in the cruel hands of the accused. The accused was holding the child in a relationship of `trustbelief' and `confidence', in which capacity he took the child from the house. In other words, the accused, by his conduct, has belied the human relationship of trust and worthiness‖. Amit vs. State of U.P. decided on 22th February, 2012: Facts of the case: On 19.03.2005, one Radhey Shyam lodged a First Information Report at the Daurala Police Station in District Meerut alleging that while his mother Manno and wife Shakuntala were present at house, his neighbour Amit, the appellant herein, took away his daughter Monika, aged 3 years, from his house on the pretext that he would give biscuits to her but neither his daughter nor the appellant returned and when at about 5.00 p.m. the appellant came back to his house, he inquired about the whereabouts of Monika, but the appellant did not reply and ran away. The appellant was apprehended on 20.03.2005. On the statement of the appellant, the dead body of Monika kept in a plastic bag was recovered from the wheat field in the out skirts of village Palhara. After investigation, chargesheet was filed against the appellant under Sections 364, 376, 377, 302 and 201, IPC, and charges were accordingly framed by the learned Additional Sessions Judge. Judgments: The Trial Court considered the evidence, heard the arguments and found the appellant guilty of the charges under Sections 364, 376, 377, 302 and 201, IPC. For the offence under Section 376, IPC, the trial court imposed the punishment of life imprisonment. The trial court took the view that this is one of those rarest of rare cases in which the appellant was not eligible for any sympathy of the Court and imposed the sentence of death on the appellant for the offence under Section 302, IPC. The High Court confirmed the convictions under Sections 364, 376, 377, 302 and 201, IPC, but also the sentences awarded by the trial court. The Supreme Court while converting the death sentence to life imprisonment stated that ―when the appellant committed the offence he was a young person aged about 28 years only. There is no evidence to show that he had committed the offences of kidnapping, rape or murder on any earlier occasion. There is nothing on evidence to suggest that he is likely to

27

repeat similar crimes in future. On the other hand, given a chance he may reform over a period of years.‖ Bavo @ Manubhai Ambalal Thakore vs. State of Gujarat decided on 3rd February, 2012: Facts of the case: According to the Complainant-Ramilaben, on 02.05.2002 in the morning, when her husband had gone to work, she was in her house along with her three children. At that time, her daughter - Smita, aged seven years, was having pain in her finger, therefore, she called her distant relative Bavo @ Manubhai Ambalal Thakore - the appellant herein for taking her to the doctor. Thereafter, the appellant herein took Smita to a doctor at about 10:00 a.m. and at about 11:30 a.m. she returned home alone limping and crying. When the complainant asked her daughter as to what had happened, she narrated the whole incident that how the appellant herein over-powered her and the Complainant finally came to know that he has committed rape on her daughter which was also evident from her condition. Thereafter, the Complainant went to the house of the appellant, but he was not present there. When her husband returned home in the evening, she informed him about the incident and, on 05.05.2002, a complaint was lodged. Judgments: The Trial Court convicted the appellant for the offence punishable under Sections 376 of IPC and sentenced him to undergo imprisonment for life. The High Court confirmed the conviction and sentence awarded by the Addl. Sessions Judge. The Supreme Court modified the sentence of life imprisonment to rigorous imprisonment of 10 years and stated that ―the victim, in the case on hand, was aged about 7 years on the date of the incident and the accused was in the age of 18/19 years and also of the fact that the incident occurred nearly 10 years ago, the award of life imprisonment which is maximum prescribed is not warranted and also in view of the mandate of Section 376(2)(f) IPC, we feel that the ends of justice would be met by imposing RI for 10 years‖.

28

Statistical Analysis of Rape Trend Analysis of Rape during 2010: An increasing trend in cases of rape has been observed during 2006 - 2008. A mixed trend in the incidence of rape has been observed during 2008 - 2010. These cases reported an increase of 7.2% in 2007 over 2006, an increase of 3.5% in 2008 over 2007, a decline of 0.3% in 2009 over 2008 and an increase of 3.6% in 2010 over 2009. Madhya Pradesh has reported the highest number of Rape cases (3,135) accounting for 14.1% of total such cases reported in the country. However, Mizoram has reported the highest crime rate 9.1 as compared to National average of 1.9. Rape cases have been further categorised as Incest Rape45 and other Rape cases. Incest Rape (Incidence…288) Incest rape cases have decreased by 10.3% from 321 cases in 2009 to 288 cases in 2010 as compared to 3.6% increase in overall Rape cases. Maharashtra (44) has accounted for the highest (15.3%) of the total such cases reported in the country. Rape Victims There were 22,193 victims of Rape out of 22,172 reported Rape cases in the country. 8.9% (1,975) of the total victims of Rape were girls under 14 years of age, while 16.1% (3,570) were teenaged girls (14-18 years). 57.4% (12,749) were women in the age-group 18-30 years. 3,763 victims (17.0%) were in the age-group of 30-50 years while 0.6% (136) were over 50 years of age.

45

Incest, which consists in sexual intercourse with consent between persons within a specified degree of consanguinity (related by birth), namely sexual intercourse by a man with his granddaughter, daughter, sister or mother, etc., and by a woman with her father, grand-father, brother, son. It is not a crime under the Penal Code.

29

Trend analysis of Rape in Punjab during 2008-2010 Table No. 1 Incidence of Rape During 2008-2010

Year 2008

Estimated Mid-Year Population (In Lakhs) 266.89

No. of Cases Reported 517

Crime Rate 1.9

2009

269.81

511

1.9

2010

272.68

546

2.0

Table No. 2 Age-Group-Wise Victims of Rape Cases during 2008-2010 Year

No. of Cases Reported

10-14 years 36

No. of Victims 14-18 18-30 years years 45 359

2008

517

Upto 10 years 27

30-50 years 47

Above 50 years 5

2009

511

34

48

131

258

43

1

2010

546

23

39

83

346

55

1

Table No.3 Offenders Relation and Proximity to Rape Victims during 2008-2010 Year

No. of Cases Reported

No. Of Cases In Which Offenders Were Known To The Victims

2008

517

517

Parents / Close Family Members 2

2009

511

433

2010

546

542

30

No. of Victims Relatives Neighbour

Other Known Person

13

154

348

8

22

114

289

17

32

218

275

Trend analysis of Rape in Haryana during 2008-2010 Table No. 4 Incidence of Rape During 2008-2010

Year 2008

Estimated Mid-Year Population (In Lakhs) 238.90

No. of Cases Reported 631

Crime Rate 2.6

2009

242.43

603

2.5

2010

245.90

720

2.9

Table No. 5 Age-Group-Wise Victims of Rape Cases during 2008-2010 Year

No. of Cases Reported

10-14 years 22

No. of Victims 14-18 18-30 years years 38 495

2008

631

Upto 10 years 10

30-50 years 61

Above 50 years 5

2009

603

19

27

70

430

54

3

2010

720

4

23

80

481

127

5

Table No.6 Offenders Relation and Proximity to Rape Victims during 2008-2010 Year

No. of Cases Reported

No. Of Cases In Which Offenders Were Known To The Victims

2008

631

603

Parents / Close Family Members 8

2009

603

603

2010

720

720

31

No. of Victims Relatives Neighbour

Other Known Person

30

234

331

12

23

267

301

15

30

312

363

Trend analysis of Rape in Chandigarh during 2008-2010 Table No. 7 Incidence of Rape During 2008-2010

Year 2008

Estimated Mid-Year Population (In Lakhs) 10.71

No. of Cases Reported 20

Crime Rate 1.9

2009

10.97

29

2.6

2010

11.25

31

2.8

Table No. 8 Age-Group-Wise Victims of Rape Cases during 2008-2010 Year

No. of Cases Reported

10-14 years 3

No. of Victims 14-18 18-30 years years 7 7

2008

20

Upto 10 years 2

30-50 years 1

Above 50 years 0

2009

29

3

8

10

8

0

0

2010

31

4

8

4

15

0

0

Table No.9 Offenders Relation and Proximity to Rape Victims during 2008-2010 Year

No. of Cases Reported

No. Of Cases In Which Offenders Were Known To The Victims

2008

20

20

Parents / Close Family Members 3

2009

29

29

2010

31

31

32

No. of Victims Relatives Neighbour

Other Known Person

1

3

13

0

0

4

25

0

1

8

22

Incidents of Rape in India during 2005-2010 25000 20000 15000

18359

19348

22172 20737 21467 21397 Incidents of Rape in India during 2005-2010

10000 5000 0 2005 2006 2007 2008 2009 2010

Incidence of Rape in Punjab, Haryana & Chandigarh 800

720

700 600

631

603

517

546

511

500

Punjab

400

Haryana

300

Chandigarh

200 100

31

29

20

0 2008

2009

2010

33

Bibliography

Books referred: 1. Bhattacharyya, Prof. T., THE INDIAN PENAL CODE, Central Law Agency, Allahabad, 6th Edition, 2010. 2. Gandhi, B.M., INDIAN PENAL CODE, Eastern Book Company, Lucknow, 2nd Edition, 2006. 3. Gaur, K.D., TEXTBOOK ON THE INDIAN PENAL CODE, Universal Law Publishing Co. Pvt. Ltd, New Delhi, 4th Edition, 2011. 4. Misra, S.N., INDIAN PENAL CODE, Central Law Publishers, Allahabad, 11th Edition, 2003. 5. Ratanlal & Dhirajlal, INDIAN PENAL CODE, Wadhwa & Co., Nagpur, 30th Edition, 2006. 6. Sarkar, INDIAN PENAL CODE, Eastern Book Company, Lucknow, 3 rd Edition, 2011. 7. Tandon, M.P., THE INDIAN PENAL CODE, Allahabad Law Agency, Allahabad, 23th Edition, 2005.

Websites accessed: 1. http://ncrb.nic.in/ (accessed on 25-03-2012).

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