case study of section 376

Vanta Legal – Advocate Sudershani Ray

Understanding IPC Section 376 Comprehensive Overview of India’s Laws on Rape

Understanding IPC Section 376: A Comprehensive Overview of India’s Laws on Rape. This article provides a detailed analysis of Section 376 of the Indian Penal Code (IPC), which deals with the punishment for rape. It delves into the legal definitions, amendments, and the judicial stance on sexual crimes in India. In addition, it examines important case studies that highlight the application of the law and sheds light on the progress made and the challenges that remain in ensuring justice for victims.

Sexual violence is one of the most grievous crimes affecting individuals and societies globally. In India, the severity of this issue has led to stringent legal provisions under the Indian Penal Code (IPC), especially after high-profile cases that shook the nation and drew global attention. Section 376 of the IPC, which specifically deals with rape, is one such provision that has undergone amendments to adapt to the evolving social and legal landscape.

In this comprehensive guide, we will explore the key aspects of IPC Section 376, discuss landmark cases, and understand the broader implications of this law on the judicial system and society.

1. What is IPC Section 376?

Section 376 of the Indian Penal Code, 1860, defines the punishment for rape. According to the statute, any person who commits rape shall be subject to severe penal consequences, which vary based on the nature of the crime, the victim’s identity, and the circumstances in which the crime is committed.

The term “rape” is defined under Section 375 of the IPC, and it outlines specific acts considered as rape when committed without the consent or against the will of the woman. These include sexual intercourse through force, fraud, intimidation, or by taking advantage of a woman’s incapacity to give consent.

Key Provisions under Section 376:

• Section 376(1): Whoever, except in the cases provided for in sub-section (2), commits rape shall be punished with rigorous imprisonment of not less than ten years but which may extend to life imprisonment, and shall also be liable to fine.
• By a police officer.
• By a public servant.
• On a woman known to be pregnant.
• On a woman below 16 years of age.
• On a woman who is mentally or physically disabled.
• During communal or sectarian violence.
• By a person in a position of trust or authority.
• Section 376A: This provision was introduced through the Criminal Law (Amendment) Act, 2013, post the 2012 Delhi gang rape incident. It deals with the punishment for causing the death or resulting in a persistent vegetative state of the victim during or after the commission of rape. The punishment ranges from rigorous imprisonment for 20 years to life imprisonment or even death in extreme cases.
• Section 376B, 376C, and 376D: These sections deal with marital rape, sexual intercourse by a person in authority, and gang rape respectively, outlining specific punishments for these acts.

2. Amendments to Section 376: The Need for Legal Reform

Over the years, IPC Section 376 has seen multiple amendments to address societal changes, gender dynamics, and the rising incidence of sexual violence in India.

• Criminal Law (Amendment) Act, 1983: This was one of the first major amendments to the laws related to rape, focusing on custodial rape and rape of minors.
• Criminal Law (Amendment) Act, 2013: Post the horrific Delhi gang rape of December 2012, popularly known as the Nirbhaya case, the Justice Verma Committee was set up to suggest reforms. Based on its recommendations, the 2013 amendment introduced stricter punishments, including life imprisonment and death penalty in aggravated cases, and expanded the definition of rape to include non-penetrative sexual acts.
• Criminal Law (Amendment) Act, 2018: In response to the Kathua rape case (2018), the minimum punishment for raping a girl below the age of 12 was increased to life imprisonment, and in some cases, the death penalty.

These amendments represent India’s effort to strengthen its legal framework, improve the protection of women, and ensure harsher penalties for sexual crimes.

3. Understanding Consent in Rape Cases

One of the fundamental elements in determining whether an act constitutes rape is the absence of consent. The IPC, in Section 375, clearly defines the conditions under which consent is invalidated, such as:

• Force or coercion: If the act was performed without the free will of the victim, due to force, threat, or intimidation.
• Incapacity to consent: If the victim is underage (below 18 years), mentally incapacitated, or intoxicated.
• Misrepresentation or fraud: Consent obtained through deception, false pretenses, or by impersonation is also considered invalid.

Consent is not mere acquiescence; it must be unequivocal and voluntary. The judicial interpretation of consent in rape cases has evolved over time, with courts emphasizing the subjective and personal nature of consent.

4. Notable Case Studies of IPC Section 376

Several landmark cases have shaped the legal discourse on rape in India. Here are a few significant case studies:

Case Study 1: Nirbhaya Case (2012)

In December 2012, a 23-year-old physiotherapy intern was gang-raped and brutally assaulted on a moving bus in Delhi. The incident shocked the nation, leading to widespread protests and calls for legal reforms. Six men were arrested, and in 2013, the four adult perpetrators were sentenced to death (one died in custody, and the juvenile was sentenced to three years in a reform home). The case culminated in the 2013 Criminal Law Amendment Act, which introduced stringent punishments and broadened the definition of rape.

Case Study 2: Mathura Rape Case (1972)

One of the earliest cases that brought attention to the issue of custodial rape, the Mathura rape case involved a young tribal girl who was raped by two policemen in a police station. The Supreme Court’s acquittal of the accused, citing the victim’s alleged consent, led to widespread outrage and eventually resulted in amendments to the IPC, particularly focusing on custodial rape and shifting the burden of proof in rape cases.

Case Study 3: Shakti Mills Gang Rape Case (2013)

In 2013, a young photojournalist was gang-raped in an abandoned mill in Mumbai. This case was notable not only for the brutality of the crime but also because it led to the introduction of Section 376E in the IPC, which provides for the death penalty for repeat offenders.

5. The Role of the Judiciary and Challenges

The judiciary plays a critical role in interpreting and enforcing the provisions of IPC Section 376. Courts are required to balance the rights of the accused with the need for justice for the victim. Over time, the judiciary has moved towards a more victim-centric approach, acknowledging the trauma faced by survivors.

However, there are significant challenges in implementing these laws:

• Delayed trials: Despite fast-track courts, many cases experience delays, prolonging the victim’s suffering.
• Social stigma: Victims of rape often face ostracization, which deters many from reporting the crime.
• Low conviction rates: In several cases, due to lack of evidence or improper investigation, perpetrators are acquitted.

6. Conclusion: The Road Ahead

While IPC Section 376 provides a strong legal framework to punish sexual offenders, its efficacy depends on the implementation of laws, societal attitudes, and the support provided to victims. The amendments made in recent years are steps in the right direction, but there is still a long way to go to ensure that every victim of sexual violence receives justice and that the crime of rape is eradicated from society.

Efforts must be directed not only at strengthening the law but also at changing societal attitudes, improving the investigation process, and ensuring victim protection and rehabilitation. Rape is not just a violation of the body but of dignity, rights, and freedom. The fight against sexual violence requires collective societal and legal action.

References:

• Indian Penal Code, 1860
• Criminal Law (Amendment) Act, 2013 and 2018
• Landmark judgments and cases related to rape in India.

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Section 376, ipc: case study on the “mahmood farooqui v. state (gnct of delhi)” case.

The Author, Yash Jain is a Final Year LLB student at Jindal Global Law School.

The case involved a charge of section 376 of the Indian Penal Code, which is an offence of rape. The charge against the accused was that on 28 March 2015, the accused performed forceful oral sex upon the prosecutrix in his apartment without her consent and the defence from the accused at the trial court stage was that such an instance had never occurred, but after conviction at the trial court stage, the accused introduced an alternative argument (which was accepted by the court) that, even if the act of oral sex had occurred, it was with the consent of the prosecutrix. The evidence produced by both sides included oral testimonies, call detail records and various emails and WhatsApp chats. “The court at the High Court stage had acquitted the accused on the ground that, the events as shown by the prosecution seemed improbable, and even if they were probable, it was unclear whether they happened without the consent of the prosecutrix, and even if the events happened without the consent of the prosecutrix, it was unclear whether the accused understood this lack of consent” [1] .

The issue before the court was to decide whether rape had occurred as understood under Section 375 (d) (2) of the Indian Penal Code, and the understanding and relevance of Section 90 of the Indian Penal Code is also analysed. Additionally, from an interpretation point of view, the issues that need to be addressed are whether the decision abided by the principle of strict interpretation of penal statutes, and whether the literal rule of interpretation was followed, and whether the mischief rule of interpretation was followed?

 The rules of interpretation that have a bearing on the case at hand fall under the broad overview of strict interpretations of penal statutes, which is an accepted principle for when it comes to offences that are criminal in nature. The literal rule and the mischief rule of interpretation have operation in this judgement. When it comes to strict interpretation of penal statutes, it is understood that because crimes involve punishment and incarceration, it is important to interpret penal statutes as stated and to stick to the ambit that is provided in the provision. It has been understood that, if a penal statute has a possibility of multiple constructions, the one which favours the accused should be given preference [2] . But while saying that it is also important that, if the section has a possibility of having a broad understanding and application to bring the mischief/crime at hand under control, it is not necessary to choose a narrow understanding which saves the accused [3] . It is important to interpret the statute comprehensively. Even though these aforementioned principles might feel contradictory, it is important to understand that the over-bearing principle that has developed through jurisprudence is that, the presumption of innocence of accused and a fair trial for an accused should only go as far as the fact that it should remain a fair trial for all the parties involved and [4] . “Denial of a fair trial is as much injustice to the accused as is to the victims or the society.” [5]

Deriving from this principle of strict interpretation of penal statutes, the literal rule and mischief rule/purposive construction also have a role to play in this judgement. The literal rule of interpretation basically says that words and phrases in the statute must be given their most common meaning i.e. a meaning as understood in common parlance, paying heed to the context in which they appear in the statute and the subject matter that they deal with [6] . When it comes to the mischief rule, the understanding is that, the parliament by its act is trying to suppress a mischief/loophole that existed in the law earlier in the common law or a previous statute, and the court needs to interpret the provision in such a way that the mischief that was originally meant to be targeted has to be suppressed or tackled [7] .

Analysis of rules and facts :

In my opinion, the aforementioned rules of interpretations that have been accepted for centuries now across countries that follow a common law system, are blatantly disregarded in this judgement of the Delhi High Court. The major two problems that are apparent in this judgement revolve around the interpretation of the concept of consent as made by the court, and how the facts and statutes are interpreted to make it a fair trial, exclusively for the accused and not the other important stakeholders.

The court interprets the concept of consent, with the help of section 375 (explanation 2) read with section 90 of the IPC, even though it is a principle that when a specific section defines a concept for the purpose of an offence, the general explanation/definition provided in the statute need not be accepted and for the purpose of that section (section 375 in this case), the former understanding needs to be used. [8] The prosecutrix was regarded as a “stellar witness” and the court accepts that in a rape case the testimony of the victim needs no corroboration for the conviction [9] . The court tried to read into consent the stereotypes that it itself disregards, by saying that a ‘feeble no’ from a woman can be considered a ‘yes’ in some occasions, and by differentiating the ‘no’ of a learned woman, when compared to a more orthodox women, and when the victim knows the accused when compared to a situation when they are strangers. What the explanation to section 375 requires in a consent is an ‘unequivocal willingness from the victim to the sexual act’, which infers that “men should receive affirmative expressions of consent, regardless of whether this is a normal practice in our sexual encounters or not” [10] , but nowhere are these kinds of nuances added to qualify consent which the court has added. It is a blatant disregard of the literal interpretation, as firstly the court is interpreting consent in section 375 differently, and secondly, by incorporating its interpretation of section 90 which requires the perpetrator to know that the consent which was given was due to fear, and only then will it not qualify as consent. The court came to the conclusion that since the accused did not know that the consent was given because of fear, but these kind of interpretations are not warranted under the conviction for rape as envisaged under section 375, so there is mis-interpretation from the court’s end at-least in terms of the literal rule of interpretation and the court fails to go ahead with a strict interpretation of this penal statute, as the principle demands. It has been very perfectly put [11] in the judgement of Tata Consultancy Services v. State of A.P, that “ a literal construction would not be denied only because the consequences to comply with the same may lead to a penalty. The courts should not be overzealous in searching for ambiguities or obscurities in words which are plain” [12] , and this is something that the judge in this case has endeavoured to do.

Another important point to take into consideration is that this explanation of consent was brought into the Indian Penal Code, by way of amendments in the year 2012, which was in-turn a result of the Justice Verma Committee recommendations, to improve the justice delivery in the rape and sexual offences cases in our country [13] . This clearly shows the purpose/intent of the legislature to suppress the mischief/ lacuna that existed in the law prior to the introduction of the explanation 2 of section 375, which was strongly based on stereotypes like previous sexual activity of the woman, the chastity of the woman to name a few, that existed in the minds of judges and which came through in their judgements. But what the judge in this case did was, rather than suppressing the mischief, he agreed with the very stereotypes that the amendment aimed to end, and mentioned all these stereotypes and tried to draw a relation with the prosecutrix. This is a clear disregard of the mischief rule of interpretation.

Lastly, the entire judgement very starkly shows how the judge interpreted situations and things which benefited the accused, and made sure that the benefit of doubt in many regards is extended to him, thereby making it a fair trial for him, and not the other parties. This can be seen by the discussion on the nature of his bi-polar condition, the discussion on how memory works in human beings and how it can be clouded in certain situations of extreme nature, and how the court disbelieves that the scheme of events did not happen as they were shown by the prosecution [14] . All of this goes against an important tenet of interpretation that has been discussed above that it should not just be a fair trial for the accused, but for all parties.

Conclusion :

After considering all the rules of interpretation and applying them to the facts of this case, and how the judge went about his interpretation, one thing is very clear: this judgement as being one of the first to discuss and deliver judgement on the concept of consent post the amendment of 2012 has set a very archaic and dangerous precedent, and what is even more dangerous is that the Supreme Court of India refused the special leave petition to challenge this acquittal. This judgement has brought in all those age-old stereotypes that a lot of judgements before this and the amendment to the Indian Penal Code had strived to remove from the interpretation that goes into deciding sexual offence cases in our country [15] and while doing this some of the fundamentally accepted rules of interpretation of statute have been blatantly disregarded.

[1] Mahmood Farooqui versus State (Govt of NCT of Delhi), MANU/DE/2901/2017.

[2] G.P Singh, AK Patnaik, ‘Principles of Statutory Interpretation (Lexis Nexis)’, Chapter 11, Page 1, < file:///C:/Users/Yash%20Jain/Downloads/Bhatia%20and%20BALCO%20-%20Lessons%20Learnt%20(YASH%20JAIN).pdf >, Dilip Kumar Sharma v State of MP, AIR 1976 SC 133; State of West Bengal v Swapan Kumar, AIR 1982 SC 949.

[3] G.P Singh, AK Patnaik, ‘Principles of Statutory Interpretation (Lexis Nexis)’, Chapter 11, Page 10, < file:///C:/Users/Yash%20Jain/Downloads/Bhatia%20and%20BALCO%20-%20Lessons%20Learnt%20(YASH%20JAIN).pdf >.

[4] G.P Singh, AK Patnaik, ‘Principles of Statutory Interpretation (Lexis Nexis)’, Chapter 11, Page 12, < file:///C:/Users/Yash%20Jain/Downloads/Bhatia%20and%20BALCO%20-%20Lessons%20Learnt%20(YASH%20JAIN).pdf >.

[5] State of Punjab v Gurmit Singh, (2014) 9 SCC 632.

[6] Mayank Shekhar, ‘Rules of Interpretation’, < https://www.legalbites.in/law-notes-interpretation-rules-of-interpretation/ >.

[8] Mrinal Satish, ‘The Farooqui Judgement’s interpretation of Consent Ignores Decades of Rape-Law Reform and Catastrophically Affects Rape Adjudication’, < https://caravanmagazine.in/vantage/farooqui-judgment-consent-ignores-rape-law-reform-catastrophically-affects-adjudication >.

[9] Mahmood Farooqui versus State (Govt of NCT of Delhi), MANU/DE/2901/2017.

[10] Rupali Samuel, ‘The Acquittal in the Mahmood Farooqui Case: A Mirror to us all’, < https://www.barandbench.com/columns/acquittal-mahmood-farooqui-case >.

[11] Mayank Shekhar, ‘Rules of Interpretation’, < https://www.legalbites.in/law-notes-interpretation-rules-of-interpretation/ >.

[12] (2005) 1 SCC 308.

[13] Mrinal Satish, ‘The Farooqui Judgement’s interpretation of Consent Ignores Decades of Rape-Law Reform and Catastrophically Affects Rape Adjudication’, < https://caravanmagazine.in/vantage/farooqui-judgment-consent-ignores-rape-law-reform-catastrophically-affects-adjudication >.

[14] Mahmood Farooqui versus State (Govt of NCT of Delhi), MANU/DE/2901/2017.

[15]   Rupali Samuel, ‘The Acquittal in the Mahmood Farooqui Case: A Mirror to us all’, < https://www.barandbench.com/columns/acquittal-mahmood-farooqui-case >.

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'False Allegation Of Rape Causes Distress & Humiliation To Accused': Supreme Court Acquits Man After 23 Years In Rape Case

Suraj kumar.

31 Oct 2023 1:11 PM IST

The testimony of the prosecutrix must be appreciated in the background of the entire case, the Court said.

A false allegation of rape can cause equal distress, humiliation, and damage to the accused as well, said the Supreme Court while acquitting a man in a case for the offence of rape (Section 376 of the Indian Penal Code).While a conviction in a rape case can be based solely on the testimony of the prosecutrix, the Court said that caution and diligence must be exercised in evaluating...

A false allegation of rape can cause equal distress, humiliation, and damage to the accused as well, said the Supreme Court while acquitting a man in a case for the offence of rape (Section 376 of the Indian Penal Code).

While a conviction in a rape case can be based solely on the testimony of the prosecutrix, the Court said that caution and diligence must be exercised in evaluating her statements.

Referring to the judgment in Raju and others v. State of Madhya Pradesh (2008) 15 SCC 133, the Court emphasized that while the evidence of a prosecutrix should ordinarily be believed and not suspected, it cannot be mechanically applied to every case of sexual assault.

The Court said, “ It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time, a false allegation of rape can cause equal distress, humiliation, and damage to the accused as well. The accused must also be protected against the possibility of false implication.."

A 3-judge bench comprising Justices Sanjay Kishan Kaul, Sudhanshu Dhulia, and C.T. Ravikumar was hearing an appeal against a judgment of the Punjab & Haryana High Court which had upheld the conviction of the appellant and sentenced him to 7 years of rigorous imprisonment.

It is to be noted that the offence allegedly took place in the year 2000 when the age of consent as per the Indian Penal Code was 16 years (it was raised to 18 years after the 2013 amendment). In this case, there was a controversy over the age of the girl, who was allegedly aged about 15 years at the time of the offence. The lack of a clear establishment that the girl was aged less than 16 years and the attending circumstances which indicated a consensual act persuaded the Supreme Court to overturn the conviction.

The FIR was lodged on a complaint filed by the girl's father after she confided to her mother that the appellant raped her 2-3 times when she had gone to his house to take care of his sister after child delivery.

Considering the family relations, initially, the matter was sought to be settled by the marriage of the prosecutrix with the appellant. But, when this proposal was turned down, FIR was lodged under Sections 376 (rape), 342 (wrongful confinement), and 506 (criminal intimidation) of the Indian Penal Code (IPC).

Conviction can be based on sole testimony only if it inspires confidence

The Court began by examining the precedents set in the cases based on the sole testimony of the prosecutrix. It cited the landmark case of State of Punjab v. Gurmit Singh (1996) 2 SCC 384, which held that the court may seek additional evidence only if it’s difficult to rely on her testimony, and the trial court must be sensitive in dealing with such cases.

The judgment authored by Justice Dhulia stated: “ If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason, the court finds it difficult to place implicit reliance on her testimony, it may look for evidence that may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.”

The principle was again laid down in Sadashiv Ramrao Hadbe v. State of Maharashtra (2006) 10 SCC 92 which held that sole testimony inspiring confidence in the mind of the court can be relied upon for conviction. But, if her version lacks support from medical evidence or if the surrounding circumstances appear highly improbable and contradict her account, the court should not solely rely on her testimony. The judgment also highlighted the need for a fair trial for both the prosecutrix and the accused.

Applying these principles to the facts, at the outset, the Court raised questions regarding the reliability of the prosecutrix's testimony since she did not disclose it immediately. Even when there were allegations of rape on multiple occasions she didn’t disclose the date and time. She only disclosed it after one and a half months. The Court noted that on the same date of occurrence(12.9.2000) she had attended a school located at a separate place.

The Court opined “ This seems improbable, if not impossible. All these facts do cast doubt on the story of the prosecution ”

The Court pointed out shortcomings in the examination of evidence about age and rape by the trial court and High Court.

It opined “ Courts must examine each evidence with open mind dispassionately as an accused is to be presumed innocent till proven guilty. In our adversarial system of criminal jurisprudence, the guiding principle shall always be the Blackstone ratio which holds that it is better that ten guilty persons escape than one innocent be punished.”

Need for bone ossification test to determine victim’s age, school register lacks evidentiary value

The Court raised a significant concern regarding the age of the prosecutrix, The Court noted that the only evidence relied upon by the lower courts to classify the prosecutrix as a minor, less than sixteen years of age, was the school register of the Government Girls High School.

Citing the precedent set in Birad Mal Singhvi v. Anand Purohit (1988) Supp SCC 604, the Court reiterated that the date of birth mentioned in a school register lacks evidentiary value unless it is supported by testimony from the person who made the entry or the individual who provided the date of birth.

It opined, “ The proof submitted by the prosecution about the age of the prosecutrix in the form of the school register was not sufficient to arrive at a finding that the prosecutrix was less than sixteen years of age, especially when there was contradictory evidence before the Trial Court as to the age of the prosecutrix. It was neither safe nor fair to convict the accused, particularly when the age of the prosecutrix was such a crucial factor in the case.”

The Court emphasized the necessity of conducting a bone ossification test to reliably determine the victim's age, which was notably absent in this case.

The Court noted that FIR was lodged only after the initial marriage proposal was turned down. It pointed out that these factors strongly indicated that what had been alleged as rape might have been a consensual act. The only factor that could have potentially changed this consensual aspect into a case of 'rape' was the age of the prosecutrix. However, medical evidence suggested that the prosecutrix was over 16 years old.

As far as the allegation of rape is concerned the court held “ We are not convinced that an offense of rape is made out in this case as it does not meet the ingredients of Rape as defined under Section 375 of the IPC, as we do not find any evidence which may suggest that the appellant, even though had sexual intercourse with the prosecutrix, it was against her will or without her consent.”

Consequently, the Court acquitted the appellant under Section 376 IPC.

Case title: Manak Chand v. State of Haryana

Citation:  2023 LiveLaw (SC) 937

Click here to read the judgment

Comparison and critical analysis of the rape laws before and after the Criminal Law Amendment (2013)

Satwik Singh

“ Editor’s Note : The paper is a comparison and a critical analysis of the rape laws in India before and after the Criminal Law Amendment Act of 2013 which not only introduced many new sexual offences but also made punishments and penalties more stringent in an effort to curb the increasing instances of sexual offences against women in the cities of India.”

INTRODUCTION

This project will critically analyse the Anti Rape Laws prevalent in India both before and after the Criminal Amendment Act of 2013 which brought about some very necessary changes in the Rape Laws of India. However on a personal note, I feel that some provisions are not very conducive in providing the fullest extent of justice that should be dispensed to the victims of this heinous crime. India is passing through a very turbulent phase with regard to women security and cases of rapes, sexual assaults, acid attacks are on the rise on a daily basis. One of the major reasons that have been attributed to the rise of these crimes has been the increased number of unemployed youths who take to crime. The rise in the number of sexual crimes is supported by empirical data. The National Crime Records Bureau in its data has shown that the crimes have seen a gradual increase. It has seen a massive jump from 2,487 in 1997 to 24,206 in 2011 which is an increase of 873% [1] . This increase can be explained by two factors in my opinion. One, there is an increased awareness about the crimes and hence the feeling that these crimes should not go unreported has percolated in the society. This is a very important point because in India Sexual Crimes always had this character of social stigma attached to it. This meant that the victims would not take the matter to the relevant authorities and thus these crimes would go unreported. The long tedious process of seeking justice also played an important role in this behaviour of the victim in not reporting the crimes.  The second reason which explains the increased percentage is that the crimes have actually increased in number. This can also blamed on not having effective deterrence due to a lax implementation of the prevalent laws which can be argued to be comprehensive. Sociological conditions such as illiteracy, unemployment and gender insensitivity among the youth can be attributed to the increased crimes against women. The alarming situation is that despite the nationwide outrage, the crimes against women have only been increasing which suggests that there is something seriously wrong with our legal system when it comes to the prosecution and punishment of the perpetrators of these crimes. Also the society should sensitise itself to the plight of the victims. In our country it is commonly seen that rape victims are not treated well by the society and some people go to the extent of blaming the rape on the victim. So not only the legal mechanism but also the society needs to change its view towards the victims of rape and other sexual crimes.

Analysis of laws before the criminal law amendment, 2013

Rape laws have seen numerous transitions before reaching the present form through the criminal law amendment of 2013, which was brought through as an ordinance as the parliament was not in session. This amendment was brought after a nationwide outrage against the brutal rape of a physiotherapist student in Delhi     .

Section 375 of the Indian Penal Code defines Rape. In common parlance rape is described as sexual intercourse with a woman without her consent by force, fear or fraud [2] . Section 275 has seen an amendment in the year 1983, which overhauled the definition of rape and also made changes to the punishments that were stipulated under the section 376. This was made through the Criminal Law (Amendment) Act of 1983. Interestingly this amendment was also brought about due to the widespread criticism of a judgment in the case of “ Tukaram v State of Maharashtra” [3] , In this case the trial court had pronounced the accused as not guilty which was based on the concept that the victim had given tacit consent to the act. It was also observed that the girl was of promiscuous character which was used as reasoning for the tacit consent. This was overturned by the Bombay High Court which rightly pointed out that there was a huge difference between consent and passive submission. It was very correct in its observation that mere surrender to another person’s lust should not be taken as consent. This was upturned by the Supreme Court who acquitted all the accused. This judgment was criticised widely by the civil society. The ramifications of the case were seen in the amendments that were brought about in the             IPC and the Indian Evidence Act. Section 376 A to D were added to the IPC and section 114A was introduced in the Indian Evidence Act.

To analyse the laws before the criminal law amendment act 2013 it is important to know how the sections have defined rape and the punishments associated with it. The crux of the definition of rape in section 375 IPC before the amendment of 2013 is that rape involves coercive non consensual sexual intercourse between a man and a woman. There are six circumstances that can be said to be the constituents of rape. The primary condition necessary for rape to be committed is that there must be the commission of sexual intercourse between the man and the woman. It is widely believed that rape can only be committed if the sexual intercourse has been done without the consent of the victim, but this is not always the case, rape can be committed even after consent has been obtained if the age of the woman is below the age of sixteen years.  On a closer look at the circumstances required for the commission of rape it can be broadly divided into three parts. The first two clauses reveal that they deal with sexual intercourse with a woman ‘against her will’ and ‘without her consent’. This means that the woman is consciously capable of giving or not giving consent to the act. The next two clauses deal with the woman giving her consent due to coercion that is by putting her or any of her family member to threat of hurt or grievous harm and it also deals when the consent is obtained through misconception. The last two clauses deals with the situation when the consensual sex with underage female person takes place.

Explanation of the term ‘Sexual Intercourse’ and ‘Penetration’

These are the terms that have undergone the most comprehensive change in the recent amendment of 2013. Before the amendment of 2013, sexual intercourse was taken to mean the penetration of the male genital organ into the female genital organ only. The courts interpreted the term sexual intercourse as “ mere slightest or partial penetration of the male organ within the labia majora or the vulva or pudenda is sufficient to constitute ‘sexual intercourse’” [4] .  The courts have stressed on the fact that the depth of the penetration is immaterial [5] . It is also laid down that there is no requirement for injuries to be present on the private part [6] of the woman to constitute rape. The hymen need not be ruptured [7] . Thus the essential condition of rape is penetration and not ejaculation. Ejaculation without penetration will constitute as an attempt to rape and not rape actually [8] . These conditions were expressly mentioned by the Supreme Court in the case of “ State of Uttar Pradesh v Babulnath” [9] . The court in this case while delving into the essential ingredients of rape made the observation that “ To constitute the offence of rape it is not at all necessary that there should be complete penetration of the male organ with the emission of semen and rupture of hymen. Even Partial or slightest penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough for the purposes of section 375 and 376 of the Indian Penal Code. That being so it is quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stain” [10] . An important issue of widening the ambit of section 375 to include the any bodily penetration as rape was raised in the case of Smt Sudesh Jhaku v KCJ & Ors. [11]  The petitioners wanted to increase the ambit of the definition to include penetration of any male body part into any orifice in the woman’s body. This however was rejected by the court which was not in favour of tinkering with the existing definition of the term. The court said that it was necessary to prevent chaos and confusion in the society with regard to the changed definition of rape and hence Section 375 should not be altered.

It is also important to note that there is also an exception to section 375.  The exception is known as Marital Rape. Marital Rape is defined as non consensual sex with wife who is over the age of 15 years.  The crux of the argument is that any coercive or non consensual sex with a wife over the age the age of 15 years will not be considered as rape within the purview of section 375. The immunity of the husband from getting convicted for marital rape arises from the assumption that after marriage husband gets a lifelong consent for sexual intercourse with his wife. This is a very problematic situation according to me because this is in contravention to the statute that states that the minimum age for marriage of a woman should be 18 years. So if that is the case a man cannot marry a wife who is of 15 years of age. I also don’t agree with the fact that Marital Rape is not considered to be rape because I don’t agree with the concept of lifelong consent to sexual intercourse just because a couple is married.

Punishments

Section 376 of the IPC stipulates the punishments that are awarded if a person is convicted of rape. There is a minimum punishment of seven years and it can also be given with a fine and extend to life imprisonment. However Section 376(2) provides the situations where the quantum of punishment will be very high and it will include rigorous imprisonment which will not be less than a term of 10 years.

The punishment for gang rape is provided under sub section 2 of section 376 IPC which postulates that when a woman is raped by more than one person then each of the person will be convicted of the crime of gang rape and the punishment would not be less than ten years of rigorous imprisonment in such cases.

Rape Laws after the Amendment of 2013.

The Criminal Law Amendment Act of 2013 was brought into effect after the horrific Delhi Gang Rape case which shocked the whole nation with the brutality of the act committed. Widespread protests and agitations forced the legislature to contemplate the changing of the prevalent rape laws.  The basic idea was to make them more stringent and introduce harsher punishments besides broadening the ambit and definition of the term rape.

Late Justice J.S.Verma, Gopal Subramaniam and Ex-Justice Leila Seth comprised the rather famous ‘Justice Verma Committee’ which was made to collect suggestions and make recommendations for the legislature to make a law to combat rape and other crimes against women [12] .The technical committee was so proactive with its working that during its short duration it received as many as 80,000 suggestions over which deliberations were done. These suggestions were sent by various activists, lawyers, NGOs and other persons representing the ‘civil society’ . Since the legislature was adjourned and there was no session, the committee’s recommendations were introduced via an ordinance.

The offence rape was now amended or given a broader meaning which was comprehensive enough to include any kind of penetration and also in any body part of the woman or girl. This was the most important change because earlier section 375 of the IPC only stipulated the Penile Vaginal penetration as rape. The fact that the new recommendations added that any penetration would be considered as rape was the most efficient tool in widening the ambit of the term rape which was being demanded earlier on the basis of the recommendations of the fifth law commission report. There was also the inclusion of registering complaints and medical examination. The report categorically mentioned, “Any officer, who fails to register a case of rape reported to him, or attempts to abort its investigation, commits an offence which shall be punishable as prescribed [13] ”

The committee gave extensive recommendations regarding avoiding marital rape as well as rapes committed via commission of void marriages. This was very important as I feel that Marital Rape is a loophole that is very explicit and on the face in nature. It is a topic that is not very hidden that legislations are not being made on the issue. This is why it is such an important thing since everyone knows about it and yet the effort to include it under the definition of rape has only begun recently. To include this fact and observation the committee mentioned compulsory registration of marriages so as to provide legal sanctity solemnization of marriage. The Code of Criminal Procedure  also underwent a similar overhauling attributed to the new law and had previously gone through the same process after the judgment in the Supreme Court decision in the “ Gurmit Singh Case [14] ” .

  Critical Comparison of the two legislations

It goes without saying that the laws have now changed drastically from what it existed previously. Societal views changes from time to time with the advent of new values and technologies. It is only fair that similarly laws which matter so much in regulating the law and order prevailing in the society also changes from time to time. This is important to counter and combat new types of crimes that have emerged of late such as cyber crimes which include data theft, harassing, breach of privacy and so and so forth.   The major rape and sexual assault cases such as the ‘ Shopian Rape Case, the Aruna Shanbaug Case, Nirbhaya Rape Case, Priya Patel [15] , the Mathura Rape Case [16] , etc. all have had an effect on the functioning of rape laws and their interpretations as well as reformations [17] .Rape was included in the Indian Penal Code, 1860 in its original form since 1924 [18] .

The Criminal Law (Amendment) Act, 2013 was a replacement of the Criminal Law (Amendment) Ordinance, 2013 [19] . The Act was mandated to make change in the Indian IPC & CrPC as well as the Indian Evidence Act. There was a rise in threats towards individual privacy in the country [20] and it was high time to include certain new crimes under the Indian Penal Code in consonance with the passing of time. A new crime that was introduced and was not provided for in the country’s earlier legislations was ‘voyeurism’ which means the recording or viewing images, movies or any such media material without the permission of the person portrayed or screened in them would result in penal punishment. A ‘voyeur’ is defined as “ a person who derives sexual gratification from the covert observation of others as they undress or engage in sexual activities . [21] ” Voyeurism is a criminal act which creates apprehension for society and is infringement of expectations of privacy that all citizens have about their body which they do not wish to expose it to others [22] .

The inclusion of voyeurism as a crime under the Indian Penal Code has made sale of pornography, invasion of privacy and all forms of sale of defamatory pictures as prohibited and this has resulted in apprehension in minds of criminals.

Another very important change from previous legislations is the much required change in the procedure of providing evidence in the court of law. After the Mathura rape case the outcry did result in amendment of Section 114A of the Indian Evidence Act. This was done to maintain that despite there being the lack of consent given by the women, there was often a character assassination of the women at the court trials which was very unfortunate. Thus there was a transition from earlier legislations and Section 53A of the Indian Evidence Act was introduced making it explicit that in a trial where there was sexual assault or rape then the evidence supplied relating to the victim’s previous sexual experience or even for a matter of fact her ‘character’ could not be admissible in the court of law. Still is unfortunate that the character assassination of the victim continues in the society which increases the hurt suffered by the victim.

On instances of rape or sexual assault cases the evidence concerning consent is often derived on the basis of the past conduct of the woman which seems rather frivolous as at the instance of the abuse she might not have consented thus constituting the criminal act. In earlier cases prostitutes could be raped and their right would not be protected as the victim’s previous sexual experience and “promiscuous character” would always malign the proceedings and create a bias in the judiciary’s mind. The sole reason for this inclusion of this amendment was to prevent the breach of privacy of the victim’s sexual history by preventing it to be included as a piece of evidence in court. Thus unwarranted intrusion in the privacy of the victim’s life should not be supported by members of the civil society. The new law protected defamation of the woman and rights of the woman to live with dignity [23] .

Lastly and very importantly, there was also an introduction of sexual harassment at workplace (under section 354 of the IPC in addition to the Sexual Harassment at Workplace Act, 2013) and an enhanced definition of rape provided for in the amended law. The earlier legislation had focused on coercion [24] and the fear of death or hurt of someone close to her [25] as an example of force exerted or lack of consent when there was commission of rape. Another example of deceit which culminated into the act of committing rape was commission of false marriages [26]

To conclude with the comparison between the legislations it can be said that the two major substantive changes were introduction of sixteen forms of rape (Penetration made by object and all parts of body included) and also the increase in age of consent. Both were introduced to combat rise of rapes committed on minors specifically. Though there was another recommendation by the J.S.Verma Committee which wanted to introduce marital rape under section 375 but this was not allowed as it would have been a social controversy. One must also note that the sexual harassment at workplace which was for the first time highlighted in the case of Sakshi v. Union of India [27] which was a public interest litigation  seeking punishments for sexual harassment committed against women at workplaces. It also wanted to widen the interpretation of rape to include all forms of penetration to be covered, the court had then given the decision in favour of the NGO but the parliament was did not recognise it. The 2013 Amendment and Act made this a reality as it gave sanction to the judgment. So I believe laws can be made much more stringent than they already are.

Edited by Amoolya Khurana

[1] Times of India Kolkata 2013 May 19; 1 ( Col. 3)

[2] Bhupinder Sharma v State of Himachal Pradesh AIR 2003 SC 4684

[3] AIR 1979 SC 185

[4] Madan Gopal Kakkad vs Naval Dubey (1992) 3 SCC 204;

[5] Wahid Khan v State of Madhya Pradesh (2010) 2 SCC 9;

[6] Fateh Chand vs State of Haryana, (2009)15 SCC 543

[7] Guddu vs State of Mp,(2007)14 SCC 454, 2006.

[8] Ramkripal Shyamlal Charmakar vs State of Madhya Pradesh(2007) 11 SCC 265;

[9] (1994) 6 SCC 29

[11] (1998) Cr LJ 2428

[12] http://en.wikipedia.org/wiki/J._S._Verma

[13] Report of the Committee on Amendments to Criminal Law Pg 416  http://www.thehindu.com/multimedia/archive/01340/Justice_Verma_Comm_1340438a.pdf . last accessed 3 August 2014.

[14] State of Punjab v. Gurmit Singh, AIR 1996 SC 1393

[15] Priya Patel v. State of Madhya Pradesh, AIR 2006 SC 2639

[16] 1979 AIR 185

[17] http://www.bbc.co.uk/news/world-asia-india- accessed on 3 August 2014

[18] http://indiankanoon.org/doc/1279834/ (Accessed on 1.07.2014)

[19] Criminal Law(Amendment) Ordinance, 2013, available at  http://mha.nic.in/pdfs/criminalLawAmndmt – 040213.pdf (Accessed on 11.07.2014)

[20]  http://bit.ly/10nMSTT  (Accessed on 11.07.2014)

[21] Oxford English Dictionary, available at  http://bit.ly/YN2Zv I accessed on 2 August 2014

[22] Lance Rothenberg, Rethinking Privacy: Peeping Toms, Video Voyeurs, and the failure of criminal law to recognize a reasonable expectation of privacy in the public space, American University Law Review, 49, 1127,

[23] http://cis-india.org/internet-governance/blog/the-criminal-law-amendment-bill-2013 accessed on 2 August 2014

[24] State of Maharashtra v. Prakash, AIR 1992 SC 1275: 1993 Supp (1) SCC 653

[25] State of Himachal Pradesh v. Mango Ram,  (2000) 7 SCC 224

[26] Jayanti Rani Panda v. State of West Bengal, 1984 Cr LJ 1535

[27] AIR 2004 SC 3566

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1 thought on “Comparison and critical analysis of the rape laws before and after the Criminal Law Amendment (2013)”

you talked about merital rape…. What matters when sec 375 expressly provide circumstance that if the sexual intercourse is taken place against her will it will be a rape. sec 375 is talking about women which include any female in which wife also come…

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Indian Journal of Law and Legal Research ISSN: 2582-8878 | PIF: 6.605 Indexed at Manupatra, Google Scholar, HeinOnline & ROAD

A Historical Review Of Section 376 Of IPC: A Harsh Reality And Insertion Of New Sections

A Historical Review Of Section 376 Of IPC: A Harsh Reality And Insertion Of New Sections With Landmark Judgements

Hemant Kumar Sharma, Avadh Law College, Barabanki, RMLAU, U.P. & Adv. Clerk, High Court of Judicature, Allahabad, Lucknow Bench

Adv. Chittra Anand, LL.M., Baba Saheb Bhim Rao Ambedkar University, A Central University, Lucknow

Rape is one of the most heinous crimes in the world today, and regardless of education or social development, this social vice continues to this day. On the contrary, the number of rape cases has steadily increased in recent years. Rape leaves victims in extreme physical and mental turmoil, and because they are victims of something through no fault of their own, they are ignored and ostracized by society. It is more important than ever that those responsible for such acts receive the maximum and harshest punishment possible so that justice is guaranteed and future rapes are minimized. The purpose of this article is to briefly discuss rape and then elaborate on the punishment for rape provided for in Sections 376 and 376A-E of the Indian Penal Code, 1860. The article also discussed subsequent changes to this section and how it shaped domestic rape laws.

Keywords: IPC, CrPC, Outlaw, Rape, Abominable, Section 376, Section 376A-E, Riot, Detectable, Voyeurism.

• Volume V Issue II

Indian Journal of Law and Legal Research

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ISSN: 2582-8878

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