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OFFENCES OF GANG RAPE: Name*

JUDICIAL AND STATUTORY TRENDS

By Kumar Rishabh Parth

 APR 8, 2020  Constitution, Crimiminal Procedure Code, Empowerment, Gang Rape, IPC,
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Judicial Trend, Law, Legal, POCSO, Rape, Statutory Trend

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 INTRODUCTION:
Rape is the maximum heinous offence in opposition to women. It is an insult to the civility. It is
symptomatic of sexually starved society that has injuriously threatened and nonetheless threatening the
ladies’ very proper to liberty and persona. Women are being rapped at paintings, on the streets, inside
the area, inside the scheduled places, of their houses via guys. They are raped via people who are their
household or buddies’ or maybe via strangers. From decrease degree to the upper strata ladies are
being raped by means of guys even on this 21st century. Doctors rape their patients and nurses. The
employers molest domestic maidservants; manufacturing facility people are compelled to have sexual
relations with their in-fee/Head. Castes Hindus rape Harijans and Adivasi girls.
Gang Rape means whilst a set of people participate in the rape of an unmarried sufferer. Rape involving
at least or more violators is said throughout the world. It is described in Section 376- D and 375 of Indian
Penal Code, 1872. Gang rapes by using dacoits, rape all through communal riots is pretty
commonplace. Another frightening incidence of rape, which the present day Indian society is witnessing,
is the rape of teen women. Again the rape by way of custodian of regulation, specifically the police are
very common. Hardly a day passes a day without record in the newspaper or a magazine of a rape,
assault or molestation having taken region both inside the rural and urban areas.

The present bankruptcy consequently very well specializes in the offence of rape and Gang Rape where
attention is made on Gang Rape and its fashion in judicial choices and statutory legal guidelines.

RELATION AND DISTINCTION BETWEEN

GANG RAPE AND RAPE:
The offence of rape and gang rape are punishable under the Indian Penal Code and separate
punishment has been provided for them. A gang rape is committed by more than one person on a
woman while a rape is committed by one man. The punishment provided for the offences of rape are
defined under S. 376 of IPC[1] as follows:

(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 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,—

1. being a police officer commits rape—

 2. within the limits of the police station to which he is appointed; or
3. in the premises of any station house whether or not situated in the police station to which he is
appointed; or on a woman in his custody or in the custody of a police officer subordinate to him; or

1. 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
2. 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
3. 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
4. commits rape on a woman knowing her to be pregnant; or
5. commits rape on a woman when she is under twelve years of age; or
6. 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.

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 sub-section.

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.]
If any other person commits rape on any woman, he shall be punished with rigorous imprisonment of
either description for a term which shall not be less than seven years, but which may extend to
imprisonment for life, and shall also be liable to fine.

Whereas, Gang Rape is defined under Section 376D[2] which prescribes punishment for gang rape and
says where a woman is raped by a group of persons, then they shall be punishable with rigorous
punishment of not less than 20 years, but may extend to life imprisonment, and with fine.

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of
the victim: Provided further that any fine imposed under this section shall be paid to the victim.[3]

OFFENCE OF GANG RAPE: A JUDICIAL TREND:

Judiciary has performed a vital function in protective the rights of the women and have tried to interpret
laws in consonance with international treaties and Conventions.

Till 2002, the judiciary changed into no longer so proactive in convicting the rapists and the sexual
history of the ladies become the number one element considered whilst the decision became given. The
identical became contemplated whilst the Hon’ble Supreme Court acquitted the accused primarily based
upon the sexual records of the victim in the Mathura Case. The court docket presumed that the sufferer
gave her consent due to the fact she changed into recurring of the sexual sex and the vagina of the
sufferer could admit two-fingers very easily.[4]

But because of great protests and open letter to the Supreme Court with the aid of some intellectuals,
led to a modification within the Criminal Act. This change stated that if a victim says that she did now not
supply the consent, then the Court shall count on the equal.

How the quantum of punishment is decided in gang rape cases?

Capital punishment in cases of Gang rape:
1. Shakti Mills Gang Rape case[5]:
On August 22, 2013, the photojournalist had gone to Shakti Mills with a male colleague on a venture.
The accused to start with provided to help them but later accused them of trespassing on railway
belongings. They then tied up the male colleague and gang-raped the young lady. They claimed they
had taken pictures of the sufferer and might make them public if she complained. Two weeks after the
incident, the telephone operator came ahead and registered a case against 4 guys for gang raping her in
July 2013. Three of the men were commonplace to the photojournalist’s rape. The cellphone operator
had long gone there along with her boyfriend, who changed into also tied up when she became violated.

The 4 convicts who have been awarded a life time imprisonment incudes Vijay Jadhav, Qasim Sheikh
Alias Bengali, Salim Ansari and Mohammad Ashfak Shaikh. The session’s court convicted them on 13
counts, inclusive of gang rape, destruction of proof, criminal conspiracy of the IPC and positive Sections
of the Information Technology (IT) Act. The fifth accused, a minor in the telephone operator gang rape
case, is being tried by the Juvenile Justice Board.

The court in this case also charged the fifth accused with S. 376E of IPC. Under this section a repeat
offender can be sentenced to imprisonment for the remainder of the natural life or death.

2. The Nirbhaya Gang Rape case[6]:

This case hardly calls for any information to be stated as it is still fresh inside the awareness of the
kingdom. A paramedical student changed into tortured via six guys to such an extent that an iron rod
turned into shoved into her vagina and her intestines, stomach, and genitals had been broken severely.
They threw her out of the bus within the wintery night. Nirbhaya gang rape case was one of the ‘rarest
of rare cases’ which was disturbing at so many levels that it’s still etched on our minds

The Supreme Court in this case decided that the juvenile was sent to a correction home and has been
released since. One of the accused committed suicide in the jail and the four others were sentenced to
death in 2013.
Life imprisonment in cases of Gang rape:
1. Mohan lal and Anr. V. State of Punjab[7]:
A student become forcibly raped via her teachers such as the Director of Education of Punjab state. The
trial court imposed 10 years of imprisonment at the accused and fine of Rs.2, 000/- and Rs.3, 000/-
respectively, and in default of payment of nice, to undergo in addition rigorous imprisonment for three
hundred and sixty five days and 6 months respectively. But an appeal was made by the accused. The
Supreme Court while agreeing with the trial court stated that so far as the conviction is concerned, as it
was a case of gang rape by teachers of their student, the punishment of 10 years rigorous imprisonment
imposed by the trial court is shocking, considering the relationship between the parties. It was a fit case
where life imprisonment could have been awarded to all the accused persons.

Punishment for less than 20 years in cases of Gang

rape:
1. Baldev Singh & Ors. V. State Of Punjab[8]:
The prosecutrix was gang raped and beaten by the accused when she was going to her house. All the
three appellants were convicted and sentenced to 10 years rigorous imprisonment. The High Court
upheld the sentence. The appellants had already gone for 2 years imprisonment. The accused and
prosecutrix and the appellant are married (not to each other) and the prosecutrix has two children also.
The incident is now 14 years old and it was stated before the court that both the parties have entered
into a compromise. Therefore, the accused should be acquitted. The apex took all the above listed
factors into consideration and reduced the sentence of the accused to that much which the accused had
already undergone.

In this case, the sentence awarded by the court was less than the punishment prescribed in the Section
376 of IPC.
 2. Shimbhu & Anr v. State Of Haryana[9]:
The victim in this present case was gang raped by the accused. The Additional Sessions Judge
convicted the accused and awarded them 10 years rigorous imprisonment. The High Court upholded the
same. The accused filed an appeal and the learned counsel on behalf of the appellant contended that
the accused should be awarded lesser punishment as there has been a compromise between the
parties. But the court rejected these contentions and held that rape is a non-compoundable offence and
cannot be considered a leading factor in reducing the punishment. Because there might be a possibility
that the victim has been pressurized for the compromise. By the Criminal Law Amendment, 2013, the
proviso which said that in exceptional circumstances, the punishment may be reduced, has been deleted
in the wake of the rising of crimes against women. Though this deletion does not affect the discretionary
powers given to the judiciary.

The court has warned the subordinate courts and the High Court again and again in the words:

This is yet another opportunity to inform the subordinate Courts and the High Courts that despite
stringent provisions for rape under Section 376 IPC, many Courts in the past have taken a softer view
while awarding sentence for such a heinous crime. This Court has in the past noticed that few
subordinate and High Courts have reduced the sentence of the accused to the period already undergone
to suffice as the punishment, by taking aid of the proviso to Section 376(2) IPC. The above trend exhibits
stark insensitivity to the need for proportionate punishments to be imposed in such cases.[10]

OFFENCE OF GANG RAPE: A STATUTORY TREND

Statutory Rape is described in Section 375 of Indian Penal Code, (amendment of 2013) which states
that “any male, who does an intercourse with any female who is under the age of 18, with or without her
consent might be constituting a Statutory Rape”. This offence is created to shop the exploitation of the
minor with the aid of the adults. In this type of rape, the grownup gets punished if he had any type of
bodily interplay with a woman/girl, within the age of 18 or underneath, no matter if she has voluntarily
participated in the act or not. The consent of the minor is immaterial and will now not be considered any
defense to the accused.
The Protection of Children against Sexual Offences Act, 2012 was passed by both the Houses of
Parliament on May 22. This Act aims to define various offences against the minor/children to provide
penalties to them. Before this Act was passed, the age of consent was 16 years of age. As the new Act
came into force the exploitation of children will reduce at some extent.[11]

Key Points of Statutory offence:

The Statute for this offence is The Protection of Children in opposition to Sexual offences Act, 2012
(POCSO) however it is regulated by way of the Section 375 of IPC.
This Act regulates the exploitation in opposition to the youngsters via the adults,
The consent is immaterial of the sufferer in those kind of offences,
This offence includes punishment beneath Section 376 of IPC

Discussed below are 2 major reforms in the sexual intercourse (Gang Rape) laws in the country:

The Protection of Children in opposition to Sexual

offences Act, 2012:
Commonly referred to as POSCO, this act received the President’s assent on June 19, 2012 and turned
into gazette at the very next day. It was designed to defend the youngsters from offences of sexual
attack, sexual harassment and on the identical time offer for courts to facilitate trial of such instances.
There arose a need to bypass a specific act for children as they’re considered incapable of giving their
consent and as a result inclined and liable to exploitation.

A Delhi district court has found that consensual sex with a lady aged below 18 years does not represent
an offence below the Protection of Children from Sexual Offences Act. The courtroom said the provisions
of POCSO Act propose that in which a bodily dating without the minor female’s consent or wherein the
consent has been acquired unlawfully, simplest that might amount to against the law. Hence, consensual
sex isn’t any offence.

Criminal Law (Amendment) Act, 2013: Sexual

Offences:
Owing to the sizable enragement over the tragic Delhi gang-rape case (Nirbhaya incident) of December
16, 2012, the Government of India sincerely saw the need to take a few drastic steps to pacify the
multitude and decrease the rampant cases of violence in opposition to girls within the country. This
incident shook the country to its very core and the state had by no means seen this kind of united the
front towards the difficulty of rape and sexual attack. After the verdict of the case, there was a nation-
wide demand for stricter laws on the subject matter. Consequently, in December, 2012, GOI constituted
The Justice Verma Committee, a three-member committee headed by the former Chief Justice of India,
Justice J.S. Verma to look into the issue.

The committee gave its report on matters relating to-Constitutionalism, Republicanism, and Gender
Equality, Gender Justice and India’s Obligations under International Conventions, Rape and Sexual
Assault, Sexual Harassment at the Workplace, Trafficking of Women and Children, Child Sexual Abuse
and many more. Recommendations made by the committee are as follows:[12]

Marital Rape should be criminalized under Section 375 of Indian Penal code and the exception
regarding the same should be nullified.
The word rape under Section 375 to be replaced by sexual assault.
Two-finger test in case of rape was considered exploitative and hence should be immediately
banned.
Consent must be real and not it is vitiated by fear of injury, a misconception of fact. Also, it should
not be given by a person who is of unsound mind, or intoxicated and hence is unable of
understanding the repercussions of the consent. The consent of a person below 12 years of age is
also considered no consent.
Section 160 of the CrPC has been amended to require the statement of female victims of sexual
assault under the age of 12 to be recorded by a woman police officer.
It also laid down stricter provisions for filing of police complaints and the conduct of the officers.

After this the government makes certain amendments and passed the Criminal law (amendment) Bill,
2013 and makes amendments into various acts like CrPC, Indian Evidence Act, IPC, POCSO.

Modifications to Indian Penal Code, 1860:

 Inserted sections 354A and 354B dealing with Assault or use of criminal force against women.
The punishment for rape beneath IPC was better. Initially, wrongdoer might be responsible for
rigorous imprisonment of at least seven years up to lifestyles imprisonment, together with first-
class. Now, the minimal imprisonment has been multiplied from seven years to ten years.
Rape under Section 375 of Indian Penal Code earlier included just the vaginal penetration.
However, with coming up of the act, the ambit of rape was widened to include more extensive
physical acts. In addition to vaginal penetration, it sought to include the following acts done by a
person or if the person makes someone else do such acts to amount to rape[13]–

1. Penetration of penis into vagina, urethra, mouth or anus.

2. Insertion of any object or any body part, not being penis, into vagina, urethra, mouth or anus.
3. Manipulation of any body part so as to cause penetration of vagina, urethra, mouth or anus or any
body part.
4. Application of mouth to the penis, vagina, anus, urethra.
5. Touching the vagina, penis, anus or breast.

Modifications to code of Criminal Procedure Code,

1980:
A woman against whom any such offence has been committed or attempted shall be recorded, by
a woman police officer or any woman officer under Section 161 of CrPC.
According to the provisions of CrPC, 1980, the most time for final touch of investigation became
months. This Ordinance decreases the time from 3 to two months.
Also, an appeal in case of any rape case has to necessarily be disposed of inside six months.
No anticipatory bail to be granted to the alleged offenders accused of sexual assault towards minor
women under the age of 12 and sixteen.

Modifications in POCSO Act:

The age of a child became reduced from 18 years to 16 years beneath Section 2(d) of POCSO
Act.
 Punishment for rape below the act was expanded from 7 years imprisonment and fine to 10 years
imprisonment and first-rate.
For Section forty two of the POCSO Act, it turned into held that where an act or omission
constitutes an offence punishable under this Act and also underneath sections 166A, 354A, 354B,
354C, 354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E, 509 of the Indian Penal Code, the
wrongdoer shall be vulnerable to punishment under this Act or below the Indian Penal Code as
provides for punishment that’s greater in degree.

Modifications to Indian Evidence Act, 1872:

Section 114A was introduced to the Indian Evidence Act, 1872 which stated that in instances
where sexual sex by using the accused is proved and the query is whether or not it turned into
without the consent of the woman speculated to were raped and such girl states in her evidence
earlier than the courtroom that she did now not consent, the courtroom shall presume that she did
not consent. The onus is at the accused to show that there was consent.
Also, Section 146 of the Indian Evidence Act changed into amended to nation that questions of
popular immoral individual or about previous sexual experience shall now not be requested and
also, would not be admissible inside the court docket.

CAN A WOMEN BE CHARGED FOR GANG

RAPE?
The query itself looks so obnoxious. We are living in a society in which girl protection is one of the
primary concerns for all and sundry. As consistent with NCRB (National Crime Records Bureau) annual
report 2013 there has been 33,707 reported rape instances in India in comparison to 24,923 instances
inside the previous 12 months. This fashion indicates that there was a full-size growth in rape cases
regardless of so much misery and furor created aftermath the ghastly Delhi Rape case. As in step with
facts, the conviction rate in rare instances is 27.1% (2013) that’s abysmally low. The low conviction price
is due to different factors like sufferers relinquishing statements, put off in registering the FIR, defective
research, inconsistencies and contradictions in the statements through witness, insensitive trial and
grueling cross examination of victims.[14]
The issue, ‘whether a woman can commit rape’ is well settled by the non-ambiguous language of section
375 of IPC which expressly mentions that the act of rape can only be performed by a ‘man’ and not
by “any person”. Thus a woman cannot commit rape. But there is perplexity regarding the commission of
“gang rape” by women under section 376(2) (g) IPC. Unlike section 375, section 376(2) (g) talks about
“Persons” rather than “man”, which signify that the law-makers intended to keep Sec. 376(2) (g) gender-
neutral.[15]

Supreme Court was confronted with the same question, whether a women can be held guilty of Gang
Rape in the case of Priya Patel vs. State of Madhya Pradesh[16]:

The Court in this case precisely held that the non-ambiguous language of section 375 of IPC expressly
mentions that the act of rape can simplest be carried out via a ‘guy’ and no longer by using “any
individual”. Thus a woman can’t commit rape. The court further dominated that a female can’t have an
aim to rape, as its miles conceptually unbelievable and therefore, she will be able to neither be held for
rape, nor gang-rape. The court similarly held that the expression “in furtherance of their common
purpose” as appearing within the Explanation I to Section 376(2) IPC, relates to purpose to devote rape.
A lady can’t be said to have an aim to dedicate rape. And therefore, a prosecution can’t be released
against a woman for gang rape.

According to me, Priya Patel case is not a good precedent case law because recently, in case of State of
Rajasthan vs. Hemraj having facts similar to Priya Patel, the Division bench of SC followed the
Judgment pronounced in case of Priya Patel and acquitted Smt. Kamla only because she is a woman.
The Supreme Court in Priya Patel case left many questions unearthed. The acquittal of appellant was
prima facie wrong because of the following reason:

The appellant slapped the prosecutrix, closed the door and left the place of incidence. This clearly
suggests that she supported her husband’s act of raping the prosecutrix and is enough to
determine the criminal intention possessed by Priya Patel.

Owing to very unusual nature of this example, Priya Patel hasn’t affected the Indian Criminal
Jurisprudence, but the stated interpretation by way of the Judge in this example was contrary to the
provisions of Gang rape. Section 375, solely absolves lady from Rape liability however on opposite
phase 376(2) (g) consists of woman also. Though a female can’t be charged for committing rape
because of the apparent purpose i.e. their incapacity to achieve this, however she will share the identical
commonplace Intention and may be charged for commission of Gang Rape, due to the fact “They
additionally serve who simplest stand and wait”. Priya Patel should be declared awful law, the earlier, the
better, because of many essential mistakes within the judgment and until the, Priya Patel have to be
dealt with as an aberration.[17]

CONCLUSIONS AND SUGGESTIONS:

To summarize, Sexual violence or rape violates the rights of the women and it interferes with the ladies’
ability to function as complete citizens. India has ratified the worldwide human rights treaties and is
obliged to guard the rights of the ladies. In India the maximum current social motion became connected
to rape. The new anti-rape law had provisions consisting of demise penalty for sure sexual violent
offences which have been no longer welcomed by way of human rights companies such as Amnesty
International. However, apart from the fact that it failed to meet the extent of global requirements, the
main hassle with the brand new legislative reform changed into that it overlooks positive guidelines and
the nation government failed to address the primary troubles on responsibility of the police and withdraw
the criminal immunity enjoyed by way of the security forces. To conclude, the high prevalence of rape in
India proves that the Indian government is vulnerable in promoting or fulfilling the human rights, specially
the rights of the girls. As explained in the take a look at the intersection of the identities gender,
magnificence and caste indicates that the police response towards rape instances in India isn’t regular.

[1] The Indian Penal Code, 1860.

[2] Supra. Note 1.

[3] Kanti, Judicial Stand on rape and gang rape – How the quantum of punishment is decided, ipleaders
(13 Nov., 2018, 10:00 PM), https://blog.ipleaders.in/punishment-gang-rape-india/.

[4] Supra. Note 3.

[5] Sessions Case no. 846 of 2013.

[6] Criminal appeal no.607-608 of 2017.

[7] Criminal Appeal No.1880 of 2011.

[8] (2011) 13 SCC 705.

[9] (2014) 13 SCC 318.

[10] Kanti, Judicial Stand on rape and gang rape – How the quantum of punishment is decided, ipleaders
(13 Nov., 2018, 10:00 PM), https://blog.ipleaders.in/punishment-gang-rape-india/.

[11]Anubhav Pandey, Statutory rape laws in India, ipleaders (13 Nov., 2018, 11:45 PM),
https://blog.ipleaders.in/statutory-rape-laws-india/.

[12]Anubhav Pandey, Consent under Indian rape laws, ipleaders (14 Nov., 2018, 2:00 PM),
https://blog.ipleaders.in/rape-laws-india/.

[13] Supra. Note 6.

[14]Guest Post, Can a women be charged for Gang Rape? Ipleaders (14 Nov. 2018, 9:00 PM),
https://blog.ipleaders.in/can-woman-charged-gang-rape/.

[15] Ibid.

[16] AIR 2006 SC 2639.

[17] Supra. Note 8.

REFERENCES:
 1. Human Rights Watch, 2012. India: Rape Victim’s Death Demands Action. (29 Dec 2012). Available
at: http://www.hrw.org/news/2012/12/29/india-rape-victim-s-death-demandsaction [Accessed 14
Nov. 2018].
2. The Hindu, 2012. Delhi gang-rape: victim narrates the tale of horror. (Dec 23, 2012). Available at:
http://www.thehindu.com/news/national/delhi-gangrape-victim-narrates-thetale-of-
horror/article4230038.ece [Accessed 13 Nov. 2018].
3. The Times of India News, 2012. Rape fastest growing crime in the country. (Dec 27, 2012).
Available at: [Accessed 10 Nov. 2018].
4. The Times of India, 2012. Delhi gang rape case: Rapists were out for a joyride on the night of
incident, police say. (Dec 18, 2012). Available at: [Accessed 03 Nov. 2018].
5. Guest Post, Can a women be charged for Gang Rape? Ipleaders (14 Nov. 2018, 9:00 PM),
https://blog.ipleaders.in/can-woman-charged-gang-rape/.
6. Anubhav Pandey, Consent under Indian rape laws, ipleaders (14 Nov., 2018, 2:00 PM),
https://blog.ipleaders.in/rape-laws-india/.
7. Kanti, Judicial Stand on rape and gang rape – How the quantum of punishment is decided,
ipleaders (13 Nov., 2018, 10:00 PM), https://blog.ipleaders.in/punishment-gang-rape-india/.Know
more about women empowerment: http://legisnations.com/constitution-of-india-women-
empowerment/
http://legisnations.com/different-perspectives-of-justice-in/

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