RAPE

(SECTIONS: 375-376E)

SUBMITTED BY :-
SUBMITTED TO :-
SHWAS BAJAJ
DR. PUSHPINDER KAUR
ROLL NO. 69/18,
ASSOCIATE PROFESSOR,
SECTION B
UILS, PANJAB UNIVERSITY
B.A. LL.B
 WHAT IS RAPE?
• The word rape is derived from the Latin term rapio, which mean ‘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.” In other words, rape is violation with violence of the private person of a
woman.
• Justice Krishna Iyer in the case of Rafiq v. State of U.P made a remark that, ‘A murderer kills
the body, but a rapist kills the soul’.
• In the Indian Penal Code, Section 375 defines rape.
• The original section 375 and the provisions providing punishment therefor have witnessed
major amendments, rather overhauling, during 1983 (after the judgment of the Supreme Court
in the case of Tukaram v. State of Maharashtra) and 2013 (after the Nirbhaya Gang Rape
case).
 ESSENTIALS OF RAPE
The crux of the offence of rape under section 375, IPC is sexual intercourse by a man with a woman
against her will and without her consent under any one of the seven circumstances mentioned below.

With consent obtained by

With consent but given
putting her or any other
under the misconception of
Against her will. Without her consent. person in whom she is
fact that the man was her
interested in fear of death
husband,
or of hurt,

Consent given by reason of

unsoundness of mind, or
under influence of Women under eighteen When women is unable to
intoxication or any with or without consent. communicate consent.
stupefying or unwholesome
substance,

In order to bring home the charge of rape against a man, it is necessary to establish that the ‘sexual intercourse’
complained of was either against the will or without her consent. Where the consent is obtained under the
circumstances enumerated under clauses firstly to seventhly, the same would also amount to rape.
 SEXUAL INTERCOURSE

Sexual intercourse, as perceived by Section 375, IPC, implies “penetration”, to any extent, of the penis into the
vagina, mouth, urethra or anus of a female. It has been held in the case of Madan Gopal Kakkad v. Naval
Dubey, that the phrase “to any extent” used in the said provision, makes it evident that mere slightest or partial
penetration of the male organ within the vagina, mouth, urethra or anus, as the case may be, is sufficient to
constitute “sexual intercourse”.
AGAINST HER WILL OR WITHOUT HER CONSENT

In Deelip Singh vs. State of Bihar, the Supreme Court observed that “though will and consent often interlace, an
act done against the will of the person can be said to be an act done without consent, the Indian Penal Code
categorizes these two expressions under separate heads in order to as comprehensive as possible.”

According to Section 90 of IPC the consent must be free from any kind of fear or misconception.

Apart from this, Section 114A of the Indian Evidence Act, 1872, provides a presumption as to the absence of
consent in certain prosecution of rape.
 MARITAL RAPE: EXCEPTION TO SECTION 375

Marital rape refers to sexual intercourse with one’s spouse without their consent. However, it is an
exception in Section 375, IPC. The provision clearly states that “sexual intercourse by a man on his own
wife even without her consent will not amount to rape”. 

Marital rape is a big problem in India, and most people believe such a thing doesn’t even exist. Wives are
deemed to have given consent to sex every time her husband wants, which is not only degrading to women
but a sinister law.
 
It is simple to assume that marital rape has not been criminalised because the statute decriminalising it was
framed years ago when the society in India was completely different and the framers of the law used the
best of their judgement while drafting it as per the current needs of the society.

In the case of Independent Thought v. Union of India, the Supreme Court took a very pragmatic
approach that marriage is no longer a social contract but a personal relationship, and not even criminalising
marriage itself can destroy the institution of marriage. If laws like divorce and judicial separation could not
destroy marriage, it is very unlikely that criminalising marital rape will. Even though marital rape is still not
a crime, we can hope for the laws to change in the near future.
 PUNISHMENT

SECTION 376
It states that if the rape is committed by persons listed below, they shall be punished with rigorous punishment
of not less than 10 years, but can extend to imprisonment for life, which shall mean imprisonment for the
remainder of that person’s natural life, and shall also be liable to fine.
• Police officer within the limits of the police station. • By a person who is in a position trust or authority or
• A police officer in the premises of any station house. control or dominance towards a woman on such
• A police officer on a woman in the police officer’s woman.
custody. • During communal or sectarian violence.
• Public servant on a woman’s in his custody. • On a pregnant woman
• Member of the armed forces. • On a woman less than 16 years of age
• Any person in the management of the jail, remand • On a woman incapable of giving consent
home etc. on inmate of such place. • On a mentally or physically disabled woman
• Staff/management of a hospital on a woman in that • Who causes grievous bodily harms or endangers the
hospital. life of a woman.
• Who commits rape repeatedly on the same woman
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.
SECTION 376-A– PUNISHMENT FOR CAUSING DEATH OR RESULTING IN PERSISTANT
VEGITATIVE STATE OF VICTIM
It says if a person commits an offence which is punishable under section 376 which causes the death of the
women or causes the women to be in a persistent vegetative state, shall be punished with rigorous imprisonment
for a term which shall not be less than 20 years, but may extend to imprisonment for life or with death.

SECTION 376-B – SEXUAL INTERCOURSE BY HUSBAND UPON HIS WIFE DURING SEPARATION

Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation
or otherwise, without her consent, shall be punished with imprisonment of either description for a term which
shall not be less than two years but which may extend to seven years, and shall also be liable to fine.

Explanation.—In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of
Section 375.
 SECTION 376-C– SEXUAL INTERCOURSE BY A PERSON IN AUTHORITY
Whoever, being—
1. in a position of authority or in a fiduciary relationship; or
2. a public servant; or
3. superintendent or manager of a jail, remand home or other places of custody established by or under any law for the time
being in force, or a women’s or children’s institution; or
4. on the management of a hospital or being on the staff of a hospital,
abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or
present in the premises to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape,
shall be punished with rigorous imprisonment of either description for a term which shall not be less than five years, but
which may extend to ten years, and shall also be liable to fine.

SECTION 376-D – GANG RAPE

It 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.
Note: Such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim. Also, any fine
imposed under this section shall be paid to the victim.

SECTION 376-E – PUNISHMENT FOR REPEAT OFFENDERS

Whoever has been previously convicted of an offence punishable under Section 376 or Section 376-A or Section 376-D and is
subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life
which shall mean imprisonment for the remainder of that person’s natural life, or with death.’
 NCRB DATA
Rape is the fourth most common crime against women in India. According to the 2019 annual report of
the National Crime Records Bureau (NCRB), 32033 rape cases were registered across the country, or an average
of 88 cases daily, slightly lower than 2018 when 91 cases were registered daily. Of these, 30,165 rapes were
committed by perpetrators known to the victim (94.2 % of cases), a high number similar to 2018. The share of
victims who were minors or below 18 - the legal age of consent - stood at 15.4%, down from 27.8% in 2018. On
the other hand, rapes by juveniles remained high in India with 3 minors being arrested for rape, assault and
attempted violence on women and girls each day in 2019.

According to NCRB 2019 statistics, Rajasthan reported the highest number of rapes among Indian states. Other
states in the hindi heartland region, across North India, such as Madhya Pradesh, Uttar
Pradesh, Haryana and Chhattisgarh, also have the highest incidence of sexual violence against women. Among
metropolitan cities, the national capital of Delhi continued to have the highest incidence of rape at 1253 cases in
2019, while Jaipur had the highest rape rate (per 100,000 population).

One rape was reported every 16 minutes in India in 2019. This figure was 15 minutes in 2018. In 2019, the
national average rape rate (per 1,00,000 population) was 4.9, slightly less than 5.2 in 2018 and 2017. However, the
small dip may be attributed to data for West Bengal not being available. As of 2019, Nagaland (0.8), Tamil
Nadu (1.0), and Bihar (1.3) had the lowest rape rates among the states of India, while Rajasthan (15.9) had the
highest rape rate. These statistics do not take into account rapes ending in murder and attempts to rape, which are
counted separately by police in India.
RAPE CASES THAT SHOOK INDIA

Nirbhaya Gang Rape Case

Aruna Shanbaug Rape Case

Mathura Rape Case

Scarlett Keeling Rape and Murder

Priyadarshini Mattoo Rape and Murder Case

Unnao and Kathua Rape Case

Hathras Gang Rape Case

 COMPARISON OF CRIME RATES
25
ONE LAKH OF POPULATION)
CRIME RATE (CRIME PER

20

2019
15
2018
2017
10 2016
2015
5

0
India Punjab Haryana Chandigarh
CRIME RATES OF INDIA, PUNJAB AND HARYANA IN THE LAST FIVE YEARS
 AGE OF THE VICTIM (2019 STATISTICS)
India Punjab
15% Women (18 Women
Yrs and (18 Yrs and
Above) Above)
Girls (Below 43% Girls (Be-
18 Yrs) 57%
85% low 18
Yrs)

Haryana Chandigarh
1% Women (18
Women (18 Girls (Below Yrs and
Yrs and 18 Yrs) Above)
Above) 42%
58%
Girls (Be-
99
low 18 Yrs)
%
 LATEST JUDGMENTS
ANURAG SONI v. STATE OF CHHATTISGARH
[Criminal Appeal No. 629 of 2019 arising out of SLP (Criminal) No.618/2019]
FACTS: A woman accused a Chhattisgarh-based doctor of raping her in 2013. The woman, a resident of
Koni, Bilaspur, was familiar with the accused since 2009 and had a love affair.  The accused had promised
to marry her and their families were in the know of this. The accused was, however, engaged to another
woman while he had the affair with the victim. He later broke his promise to the victim and married the
other woman with whom he was engaged. An FIR was lodged against the accused and he was convicted of
rape. The High Court upheld his conviction and sentenced him to 10 years of rigorous imprisonment. The
accused moved the apex court challenging this decision. The court observed that the evidence presented
during the trial establishes that the accused never intended to marry the victim and established sexual
relation on the pretext of marriage with the woman.

DECISION OF SUPREME COURT: A bench of Justices L Nageswara Rao and MR Shah in their recent
judgement observed that rape offends a woman's dignity and esteem, and if for the fact the victim and
her rapist have already settled in their lives and taking care of their families, could not be considered a
ground to have the crime be null and void. 
 MUKESH v. STATE (NCT OF DELHI), 
(2017) 6 SCC 1 : (2017) 2 SCC (Cri) 673
FACTS: The 23-year-old paramedic student, referred to as Nirbhaya, was gang raped and brutally assaulted on the
intervening night of December 16-17, 2012 in a moving bus in south Delhi by six people before being thrown out on the
road. She died on December 29, 2012 at Mount Elizabeth Hospital in Singapore. The friend with whom Nirbhaya boarded
the bus was also beaten, gagged and knocked unconscious with an iron rod by the accused. He suffered broken limbs but
survived. The incident generated widespread national and international coverage and was widely condemned, both in India
and abroad. Subsequently, public protests against the State and Central governments for failing to provide adequate security
for women took place in New Delhi, where thousands of protesters clashed with security forces. Similar protests took place
in major cities throughout the country. Since Indian law does not allow the press to publish a rape victim’s name, the victim
was widely known as Nirbhaya, meaning “fearless”, and her struggle and death became a symbol of women’s resistance to
rape around the world. One of the six accused, Ram Singh, allegedly committed suicide in Tihar Jail in March 2013 during
the trial. Another convict, who was a minor at the time of the crime, was sent to a reform facility and released after three
years of the crime.

DECISION OF SUPREME COURT: On May 5. 2017, the 3-judge bench of Dipak Misra, CJ., R. Banumathi and Ashok
Bhushan, JJ. unanimously awarded death sentence to all 4 accused and said, :
“The gruesome offences were committed with highest viciousness. Human lust was allowed to take such a demonic form.
The accused may not be hardened criminals; but the cruel manner in which the gang rape was committed in the moving
bus; iron rods were inserted in the private parts of the victim; and the coldness with which both the victims were thrown
naked in cold wintery night of December, shocks the collective conscience of the society.”
 PATAN JAMAL VALI v. STATE OF ANDHRA PRADESH, 
2021 SCC OnLine SC 343

FACTS: In the present case, a blind girl belonging to a Scheduled Caste community was raped inside her
own home by her brothers’ acquaintance. The accused was convicted under Section 3(2)(v) of the
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 19891 and Section 376(1) of the
Indian Penal Code.

DECISION OF SUPREME COURT: Utilizing the facts of this case, the Court explored a disturbing trend
of sexual violence against women and girls with disabilities and to set in motion a thought process for how
the structural realities resulting in this state of affairs can be effectively addressed.
“… women with disabilities, who inhabit a world designed for the able-bodied, are often perceived as
“soft targets” and “easy victims” for the commission of sexual violence. It is for this reason that our
legal response to such violence, in the instant case as well as at a systemic level, must exhibit
attentiveness to this salient fact.”
Hence, the nature and circumstances in which the offence has been committed would leave no manner of
doubt that the appellant had taken advantage of the position of the woman who was blind since birth.
“A heinous offence has been committed on a woman belonging to Scheduled Caste. The imposition of a
sentence of imprisonment for life cannot be faulted.”