Indian Penal Code – II Sample

THE     INDIAN      PENAL      CODE      

OFFENCES  AGAINST   HUMAN   BODY   :   RAPE

Section 375                  Rape

  • man is said to commit “rape” if he

(a)

  • penetrates his penis, to any extent
    • into vagina, mouth, urethra or anus of a woman or
  •  makes her to do so with him or any other person

(b)

  • inserts any object or a part of body, not being the penis
    • into vagina, urethra or anus of a woman or
  •  makes her to do so with him or any other person

(c)

  • manipulates the body of a woman to cause penetration
    • into vagina, urethra, anus or any part of body of such woman or
  • makes her to do so with him or any other person

(d)

  • applies his mouth
    • to vagina, anus, urethra of a woman or
  • makes her to do so with him or any other person
  • under circumstances falling under any of these seven descriptions:

First

  • against her will

Secondly

  • without her consent

Thirdly

  • with her consent
    • when her consent has been obtained
      • by putting her or any person in whom she is interested
      • in fear of death or of hurt

Fourthly

  • with her consent
    • when the man knows
      • that he is not her husband and
      • that her consent is given because she believes that he is another man to whom
        •  she is lawfully married or
        • she believes herself to be lawfully married

Fifthly

  • with her consent
  • when, at the time of giving such consent
    • by reason of unsoundness of mind or intoxication
    • or administration by him personally or through another of any stupefying or unwholesome substance
  • she is unable to understand
    • the nature and consequences of that to which she gives consent

Sixthly

  • with or without her consent
    • when she is under eighteen years of age

Seventhly

  • when she is unable
    • to communicate consent

 

Explanation

  • For purposes of this section
    • “vagina” shall also include labia majora
  • Consent means
    • an unequivocal voluntary agreement
      • when the woman by words, gestures or any form of verbal or non-verbal communication
      • communicates willingness to participate in the specific sexual act
  • A woman who does not physically resist to the act of penetration
    • shall not by the reason only of that fact
    • be regarded as consenting to the sexual activity

 

Explanatory Notes from DLA on Consent

Case law on consent obtained through a promise of marriage:

Uday          v.        State of Karnataka       [2003  SC]

Trial court and High Court concurrently held  that though the prosecutrix had consented to sexual intercourse with the appellant  the consent was obtained by fraud and deception  inasmuch as the appellant induced her to consent on the promise that he shall marry her.

Decision by the Supreme Court

  • Consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date cannot be said to be given under a misconception of fact.
  • A false promise is not a fact within the meaning of the Code.
  • She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to it. She thus freely exercised a choice between resistance and assent.
  • There is no evidence to prove conclusively that the appellant never intended to marry her. Perhaps he wanted to, but was not able to gather enough courage to disclose his intention to his family members for fear of strong opposition from them.

 

Calcutta High Court judgment relied upon by the Supreme Court in this case:

Jayanti Rani Panda    v.   State of West Bengal [1984]

  • Failure to keep a promise at a future uncertain date due to reasons not very clear on the evidence  does not always amount to a misconception of fact at the inception of the act itself.
  • Here the fact alleged is a promise to marry we do not know when.
  • If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact.
  • 90 IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her.

 

Exception 1 to section 375

  • A medical procedure or intervention
    • shall not constitute rape

 

Exception 2

  • Sexual intercourse or sexual acts by a man with his own wife
    • the wife not being under fifteen years of age
    • is not rape

 

Explanatory Notes from DLA on Exception 2

Supreme Court on Exception 2

Independent Thought    v.    Union of India      

[October 11, 2017,  Supreme Court]

The issue before the Supreme Court:

“Whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape?”

Decision

Exception 2 to Section 375 IPC answers this in the negative but in our opinion sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not

The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved.

This artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child

Exception 2 is discriminatory in that this is the only provision in various penal laws which gives immunity to the husband.

If the husband beats a girl child and has forcible sexual intercourse with her, he may be charged for offences u/s 323, 325 IPC etc. but he cannot be charged with rape.

This leads to an anomalous and astounding situation where the husband can be charged with lesser offences, but not with the more serious offence of rape.

As far as sexual crimes against women are concerned, these are covered by Sections 354, 354A, 354B, 354C, 354D. There is no exception clause giving immunity to the husband for such offences.

Exception 2 is in conflict with POCSO:

Protection of Children from Sexual Offences Act 2012
Section 5 POCSO provides that if a person commits penetrative sexual assault with a child, then that person actually commits aggravated penetrative sexual assault if that person is related to the child, inter alia, through marriage.

Therefore, if the husband of a girl child commits penetrative sexual assault on his wife, he actually commits aggravated penetrative sexual assault as defined in Section 5(n) which is punishable under Section 6 by rigorous imprisonment of not less than ten years which may extend to imprisonment for life

The conflict therefore is that whereas the husband does not commit rape u/s 375 IPC when he has sexual intercourse with a girl child between 15 and 18 years of age but he commits aggravated penetrative sexual assault u/s 5(n) of the POCSO Act

There is no real or material difference between the definition of rape u/s 375 IPC and penetrative sexual assault u/s 3 of the POCSO Act

Section 42A provides:

in case of any inconsistency between the POCSO and any other law, it is the POCSO, which will have an overriding effect to the extent of inconsistency

Moreover, POCSO is a special Act, dealing with children whereas IPC is a general criminal law.

Therefore, POCSO will prevail over IPC

Exception 2 in so far as it relates to children is inconsistent with POCSO, and to that extent POCSO would override this Exception.

To read Exception 2 to Section 375 of the IPC in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro-child legislations and the human rights of a married girl child

Verdict

We are left with absolutely no other option but to harmonize the system of laws relating to children and require Exception 2 to Section 375 to be meaningfully read as:

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”

 

Explanatory Notes from DLA on section 375

Overhauling of section 375

  • The definition of rape was substantially changed by the Criminal Laws Amendment Act 2013 w.e.f February 2013.

What is rape?

  • The offence of rape in its simplest term is “the ravishment of a woman, without her consent, by force, fear or fraud” or as “the carnal knowledge of a woman by force against her will”.
  • In the crime of rape, “carnal knowledge” means the penetration to the slightest degree of the organ alleged to have been carnally known by the male organ of generation

Meaning of sexual intercourse

  • Dictionary meaning of the words “sexual intercourse” is heterosexual intercourse involving penetration of the vagina by the penis.
  • The earlier definition of rape did not include other forms of penetrationsuch as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vaginal and finger/anal penetration and object/vaginal penetration, within its ambit.
  • Sakshi, an organisation to provide legal, medical, psychological or other help or charitable support for women, in particular those who are victims of any kind of sexual abuse or harassment or violence, had filed a writ petition under article 32 of the Constitution for inclusion of all forms of penetration in the definition of rape by judicial interpretation. This was rejected by the Supreme Court in 2004.
  • However, with the change in definition of rape in 2013, now all forms of penetrations are characterized as rape. And even non-penetrations!

Effect or consequences of rape

  • The physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame.

 

Is corroboration required for testimony of a rape victim?

  • No.
  • The testimony of the victim in rape cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault aloneto convict an accused where her testimony inspires confidence and is found to be reliable.
  • In the Indian setting refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule is adding insult to injury.
  • To insist on corroboration except in the rarest of rare cases is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood.
  • It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime.
  • Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.
  • If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motiveto falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.

The reason

  • A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred.
  • She would be conscious of the danger of being ostracized by the society and when in the face of these factors the crime is brought to light, there is an inbuilt assurance that the charge is genuine rather than fabricated.
  • Just as a witness who has sustained an injury, which is not shown or believed to be self-inflicted, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of sex offence is entitled to great weight, absence of corroboration notwithstanding.

 

 Assurance may be required

  • The court while appreciating the evidence of a prosecutrix may look for some assuranceof her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused.
  • If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assuranceto her testimony, short of corroboration required in the case of an accomplice.

 

Is a rape victim an accomplice?

  • No, a woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case.
  • It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice.

 

Is the past conduct of the rape victim relevant?

  • Even if the prosecutrix, in a given case, has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone.

 

Consequences of rape

  • A rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process.
  • Rape is not merely a physical assault, it is often destructive of the whole personality of the victim.
  • A murderer destroys the physical body of his victim; a rapist degrades the very soul of the helpless female

 

Law of England on marital rape

  • The rule that a husband cannot be criminally liable for raping his wife if he has sexual intercourse with her without her consent no longer forms part of the law of England since a husband and wife are now to be regarded as equal partners in marriage.
  • The Sexual Offences (Amendment) Act, 1976, defines rape as having “unlawful” sexual intercourse with a woman without her consent.
  • The word “unlawful” is to be treated as mere surplusage and not as meaning “outside marriage”, sinceit is clearly unlawful to have sexual intercourse with any woman without her consent.

 

Can clause fourthly be applicable when the complainant knew that the man was already married?

  • Yes, as per Supreme Court in Bhupinder Singh v. U T of Chandigarh:
  • Though it is urged with some amount of vehemence that when the complainant knew that he was a married man, clause “fourthly” of Section 375 IPC has no application, the stand is clearly without substance.
  • Even though, the complainant claimed to have married the accused, which fact is established from several documents, that does not improve the situation so far as the accused-appellant is concerned.
  • Since, he was already married, the subsequent marriage, if any, has no sanctity in law and is void ab-initio. In any event, the accused-appellant could not have lawfully married the complainant.

 

Requirements of clause thirdly

  • For the proposition that the requisite consent was lacking, it would have to be shown that the girl had been put in fear of death or hurt and that was the reason for her consent.
  • [Source:  Tukaram   v.  State of Maharashtra]

 

PUNISHMENTS

Section 376 (1)            Punishment for rape

  • Whoever, except cases in sub-section (2), commits rape
    • shall be punished with rigorous imprisonment which shall not be less than ten years
    • but which may extend to imprisonment for life and fine

Note:

  • The minimum punishment for rape has now been increased
    • from seven to ten years
    • by the Criminal Law (Amendment) Act 2018

 

Section 376 (2)

(a)

  • Whoever  being a police officer commits rape
    • within limits of the police station to which he is appointed or
    • in premises of any station house or
    • on a woman in his custody or in custody of a subordinate police officer

(b)

  • Whoever being a public servant commits rape
    • on a woman in his custody or in custody of a subordinate public servant

(c)

  • Whoever being a member of the armed forces
    • deployed in an area by Central or State Govt
    • commits rape in such area

(d)

  • Whoever being on the management or on the staff
    • of a jail, remand home or a women’s or children’s institution
    • commits rape on any inmate of such jail, remand home, place or institution

(e)

  • Whoever being on the management or on the staff
    • of a hospital
    • commits rape on a woman in that hospital

(f)

  • Whoever
    • being a relative, guardian or teacher of the woman or
    • being a person in a position of trust or authority towards the woman
    • commits rape on such woman

(g)

  • Whoever commits rape
    • during communal or sectarian violence

(h)

  • Whoever commits rape on a woman
    • knowing her to be pregnant

(i)

  • **Deleted by the Criminal Law (Amendment) Act 2018

(j)

  • Whoever commits rape on a woman
    • incapable of giving consent

(k)

  • Whoever being in a position of control or dominance over a woman
    • commits rape on such woman

(l)

  • Whoever commits rape on a woman
    • suffering from mental or physical disability

(m)

  • Whoever while committing rape
    • causes grievous bodily harm or
    • maims or disfigures or endangers the life of a woman

(n)

  • Whoever commits rape
    • repeatedly on the same woman
  • shall be punished with rigorous imprisonment
    • which shall not be less than ten years
    • but which may extend to imprisonment for life
      • which shall mean imprisonment for the remainder of that person’s natural life

 

Explanation

  • “armed forces” means naval, military and air forces
    • including paramilitary forces and
    • any auxiliary forces under control of Central Govt or State Govt
  • “hospital” means precincts of the hospital
    • and includes precincts of any institution for reception and treatment
      • of persons during convalescence
      • or of persons requiring medical attention or rehabilitation
  • “police officer” shall have the same meaning
    • as assigned to expression “police“ under the Police Act, 1861
  • “women’s or children’s institution” means an institution whether called
    • an orphanage
    • or a home for neglected women or children
    • or a widow’s home
    • or an institution called by any other name
    • which is established and maintained for reception and care of women or children

 

Section 376 (3)         [ Inserted by the Criminal Law (Amendment) Act 2018]

  • Whoever
    • commits rape on a woman under sixteen years of age
  • shall be punished
    • with rigorous imprisonment
      • which shall not be less than twenty years
      • but which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life and
      • with fine or

Proviso

  • Such fine
    • shall be just and reasonable
    • to meet the medical expenses and rehabilitation of the victim

Proviso

  • Any fine imposed under this section
    • shall be paid to the victim

 

Section 376A               Death or persistent vegetative state of victim

  • Whoever commits an offence punishable u/s 376
    • and in course of such commission inflicts an injury which
      • causes death of the woman or
      • causes the woman to be in a persistent vegetative state..
  • shall be punished
    • with rigorous imprisonment which shall not be less than twenty years
      • but which may extend to imprisonment for life
      • which shall mean imprisonment for the remainder of that person’s natural life or
    • with death

 

Section 376AB          Punishment for rape on woman under twelve years of age

**[ Inserted by the Criminal Law (Amendment) Act 2018]

  • Whoever
    • commits rape on a woman under twelve years of age
  • shall be punished
    • with rigorous imprisonment
      • which shall not be less than twenty years
      • but which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life and
      • with fine or
  • with death:

Proviso

  • Such fine
    • shall be just and reasonable
    • to meet the medical expenses and rehabilitation of the victim

Proviso

  • Any fine imposed under this section
    • shall be paid to the victim

 

Section 376B           Sexual intercourse by husband upon his wife

  • 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
    • which shall not be less than two years
    • but which may extend to seven years
  • “sexual intercourse” in this section shall mean
    • any of the acts in clauses (a) to (d) of section 375

 

Section 376C           Sexual intercourse by person in authority

  • Whoever
    • being in a position of authority or in a fiduciary relationship or
    • being a public servant or
    • being superintendent or manager
      • of a jail, remand home or a women’s or children’s institution or
    • being on the management or 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 rape
  •  shall be punished with
    • rigorous imprisonment which shall not be less than five years
    • but which may extend to ten years and fine

 

  • “sexual intercourse” shall mean
    • any of the acts in clauses (a) to (d) of section 375
  • “Superintendent”
    • in relation to a jail, remand home or a women’s or children’s institution includes
    • a person holding any other office
      • in such jail, remand home or institution
      • by virtue of which such person can exercise any authority or control over its inmates

 

Section 376D                   Gang rape

  • Where a woman is raped by one or more persons
    • constituting a group or
    • acting in furtherance of a common intention
  • each of those persons shall be deemed to have committed the offence of rape
  • He shall be punished with rigorous imprisonment
    • which shall not be less than twenty years
    • but which may extend to life
      • which shall mean imprisonment for the remainder of that person’s natural life
    • and with fine
  • Such fine shall be just and reasonable
    • to meet medical expenses and rehabilitation of the victim
  • Any fine imposed under this section
    • shall be paid to the victim

 

Explanatory Notes from DLA on section 376D

Effect of the deeming provision

By operation of the deeming provision, a person who has not actually committed rape is deemed to have committed rape even if only one of the group in furtherance of the common intention has committed rape.

What is common intention?

“Common intention” denotes action in concert and necessarily postulates a pre-arranged plan, a prior meeting of minds and an element of participation in actionThe acts may be different and vary in character, but must be actuated by the same common intention, which is different from same intention or similar intention.

Can a lady be prosecuted for gang rape ?

No. This is conceptually inconceivable.

The expression “in furtherance of their common intention”, as appearing in the Explanation to Section 376(2), relates to intention to commit rape. A woman cannot be said to have an intention to commit rape.

 

Section 376DA          Punishment for gang rape on woman under sixteen years of age

**[ Inserted by the Criminal Law (Amendment) Act 2018]

  • Where a woman under sixteen years of age
    • is raped by one or more persons
      • constituting a group or
      • acting in furtherance of a common intention
  • each of those persons
    • shall be deemed to have committed the offence of rape and
  • shall be punished
    • with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life
    • with fine:

Proviso

  • Such fine
    • shall be just and reasonable
    • to meet the medical expenses and rehabilitation of the victim

Proviso

  • Any fine imposed under this section
    • shall be paid to the victim

 

Section 376DB          Punishment for gang rape on woman under twelve years of age

**[ Inserted by the Criminal Law (Amendment) Act 2018]

  • Where a woman under twelve years of age
    • is raped by one or more persons
      • constituting a group or
      • acting in furtherance of a common intention
  • each of those persons
    • shall be deemed to have committed the offence of rape and
  • shall be punished
    • with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life and with fine or
    • with death

Proviso

  • Such fine
    • shall be just and reasonable
    • to meet the medical expenses and rehabilitation of the victim

Proviso

  • Any fine imposed under this section
    • shall be paid to the victim

 

Section 376E                    Punishment for repeat offenders

  • Whoever has been previously convicted
    • of an offence punishable u/s 376 or 376A or 376D
  • and is subsequently convicted
    • of an offence punishable under any of these sections
  • shall be punished
    • with imprisonment for life
      • which shall mean imprisonment for the remainder of that person’s natural life or
    • with death

 

Explanatory Notes from DLA on rape trials

Directions by the Supreme Court regarding trials in rape cases 

In holding trial of rape:

(i) a screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused

(ii) questions put in cross-examination on behalf of the accused, insofar as they relate directly to the incident, should be given in writing to the presiding officer of the court who may put them to the victim or witnesses in a language which is clear and is not embarrassing

iii) the victim of rape, while giving testimony in court, should be allowed sufficient breaks as and when required.

**************

 

 

 CASE   LAW    ON    RAPE

  1. Independent Thought    v.      Union of India                                 [2017  SC]
  2. Tukaram                           v.        State of Maharashtra                   [1979 SC]
  3. State of Punjab                v.      Gurmit Singh                                   [1996  SC]
  4. Bharwada Bhoginbhai   v.      State of Gujarat                                [1983  SC]
  5. State of Maharashtra      v.      Chandraprakash Jain                    [1990  SC]
  6. Bhupinder Singh              v.       U.T. of Chandigarh                       [2008 SC]
  7. Bhupinder   Sharma        v.      State  of  Himachal  Pradesh        [2003 SC]
  8. Priya Patel                         v.      State of Madhya Pradesh              [2006  SC]
  9. Sakshi                                v.       Union of India                                 [2004  SC]
  10. R.                                        v.       R.                                                        [All ER 481]

 

 

Case Law on Exception 2 to section 375

 Independent Thought   v.      Union of India       [October 11, 2017  SC]

The issue before us is limited but one of considerable public importance – whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape?

Exception 2 to Section 375 IPC answers this in the negative, but in our opinion sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not.

The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child.

The artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions.

We make it clear that we have refrained from making any observation with regard to the marital rape of a woman who is 18 years of age and above since that issue is not before us at all.

Protection of Women from Domestic Violence Act, 2005

Section 3 of the Protection of Women from Domestic Violence Act, 2005 provides that if the husband of a girl child harms or injures or endangers the health, safety, life, limb or well being, whether mental or physical, of his wife including by causing physical abuse and sexual abuse, he would be liable to have a protection order issued against him and pay compensation to his wife.

Prohibition of Child Marriage Act, 2006 (PCMA)

Section 3 of the PCMA provides that a child marriage is voidable at the option of any one of the parties to the child marriage – a child marriage is not void, but only voidable. Interestingly, and notwithstanding the fact that a child marriage is only voidable, Parliament has made a child marriage an offence and has provided punishments for contracting a child marriage.

Section 9 PCMA provides that any male adult above 18 years of age marrying a child shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both. Therefore regardless of his age, a male is penalized under this section if he marries a girl child.

Section 10 PCMA provides that whoever performs, conducts, directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees.

Section 11 of the PCMA provides punishment for promoting or permitting solemnization of a child marriage.

 

Protection of Children from Sexual Offences Act, 2012 (POCSO)

Clause (n) of Section 5 provides that if a person commits penetrative sexual assault with a child, then that person actually commits aggravated penetrative sexual assault if that person is related to the child, inter alia, through marriage. Therefore, if the husband of a girl child commits penetrative sexual assault on his wife, he actually commits aggravated penetrative sexual assault as defined in Section 5(n) of the POCSO Act which is punishable under Section 6 of the POCSO Act by a term of rigorous imprisonment of not less than ten years and which may extend to imprisonment for life and fine.

The duality therefore is that having sexual intercourse with a girl child between 15 and 18 years of age, the husband of the girl child is said to have not committed rape as defined in Section 375 of the IPC but is said to have committed aggravated penetrative sexual assault in terms of Section 5(n) of the POCSO Act.

There is no real or material difference between the definition of rape in the terms of Section 375 of the IPC and penetrative sexual assault in the terms of Section 3 of the POCSO Act.

The only difference is that the definition of rape is somewhat more elaborate and has two exceptions but the sum and substance of the two definitions is more or less the same and the punishment (under Section 376(1) of the IPC) for being found guilty of committing the offence of rape is the same as for penetrative sexual assault (under Section 4 of the POCSO Act). Similarly, the punishment for‘aggravated’ rape under Section 376(2) of the IPC is the same as for aggravated penetrative sexual assault under Section 6 of the POCSO Act.

Consequently, it is immaterial if a person is guilty of the same sexual activity under the provisions of the POCSO Act or the provisions of the IPC – the end result is the same and only the forum of trial changes. In a violation of the provisions of the POCSO Act, a Special Court constituted under Section 28 of the said Act would be the Trial Court but the ordinary criminal court would be the Trial Court for an offence under the IPC.

Section 42-A was inserted in the POCSO Act by an amendment made on 3rd February, 2013.

“The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency.”

The consequence of this amendment is that the provisions of the POCSO Act will override the provisions of any other law (including the IPC) to the extent of any inconsistency.

Conclusion

On a complete assessment of the law and the documentary material, it appears that there are really five options before us: (i) To let the incongruity remain as it is – this does not seem a viable option to us, given that the lives of thousands of young girls are at stake; (ii) To strike down as unconstitutional Exception 2 to Section 375 of the IPC – in the present case  this is also not a viable option since this relief was given up and no such issue was raised; (iii) To reduce the age of consent from 18 years to 15 years – this too is not a viable option and would ultimately be for Parliament to decide; (iv) To bring the POCSO Act in consonance with Exception 2 to Section 375 of the IPC – this is also not a viable option since it would require not only a retrograde amendment to the POCSO Act but also to several other pro-child statutes; (v) To read Exception 2 to Section 375 of the IPC in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro-child legislations and the human rights of a married girl child.

Being purposive and harmonious constructionists, we are of opinion that this is the only pragmatic option available. Therefore, we are left with absolutely no other option but to harmonize the system of laws relating to children and require Exception 2 to Section 375 of the IPC to now be meaningfully read as: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”

Deepak Gupta, J

This Court is of the view that Exception 2 to Section 375 IPC is arbitrary since it is violative of the principles enshrined in Article 14, 15 and 21 of the Constitution of India.

Parliament increased the minimum age for marriage. The Parliament also increased the minimum age of consent but the inaction in raising the age in Exception 2 is by itself an arbitrary non-exercise of power.

Therefore, Exception 2, in so far as it relates to the girl child below eighteen years, is unreasonable, unjust, unfair and violative of the rights of the girl child. To that extent the same is arbitrary and liable to be set aside.

One more ground for holding that Exception 2 to Section 375 IPC is discriminatory is that this is the only provision in various penal laws which gives immunity to the husband.

If the husband beats a girl child and has forcible sexual intercourse with her, he may be charged for offences under Sections 323, 324, 325 IPC etc. but he cannot be charged with rape. This leads to an anomalous and astounding situation where the husband can be charged with lesser offences, but not with the more serious offence of rape. As far as sexual crimes against women are concerned, these are covered by Sections 354, 354A, 354B, 354C, 354D of the IPC. There is no exception clause giving immunity to the husband for such offences.

The Domestic Violence Act will also apply in such cases and the husband does not get immunity. The husband is not given the immunity in any other penal provision except in Exception 2 to Section 375 IPC. Exception 2 is, therefore, discriminatory and violative of Article 14 of the Constitution of India, on this count also.

The discrimination is absolutely patent and, therefore, in my view, Exception 2, in so far as it relates to the girl child between 15 to 18 years is not only arbitrary but also discriminatory against the girl child.

LAW IN CONFLICT WITH POCSO

Section 42 of POCSO makes it clear that where an offence is punishable both under POCSO and under IPC, then the offender, if found guilty of such offence, is liable to be punished under that Act, which provides for more severe punishment. This is against the traditional concept of criminal jurisprudence that if two punishments are provided, then the benefit of the lower punishment should be given to the offender. The legislature knowingly introduced Section 42 of POCSO to protect the interests of the child.

Section 42A provides that in case of any inconsistency between the provisions of POCSO and any other law, then it is the provisions of POCSO, which will have an overriding effect to the extent of inconsistency.

Penetrative sexual assault and aggravated penetrative sexual assault have been defined in Section 3 and Section 5 of POCSO. Section 3 of the POCSO is identical to the opening portion of Section 375 of IPC whereas Section 5 of POCSO is similar to Section 376(2) of the IPC.

Exception 2 to Section 375 of IPC, which makes sexual intercourse or acts of consensual sex of a man with his own “wife” not being under 15 years of age, not an offence, is not found in any provision of POCSO. Therefore, this is a major inconsistency between POCSO and IPC. As provided in Section 42A, in case of such an inconsistency, POCSO will prevail.

Moreover, POCSO is a special Act, dealing with the children whereas IPC is the general criminal law. Therefore, POCSO will prevail over IPC and Exception 2 in so far as it relates to children, is inconsistent with POCSO.

RELIEF

In view of the above discussion, I am clearly of the opinion that Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years is liable to be struck down on the following grounds:–

(i) it is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the Constitution of India;

(ii) it is discriminatory and violative of Article 14 of the Constitution of India and;

(iii) it is inconsistent with the provisions of POCSO, which must prevail.

Therefore, Exception 2 to Section 375 IPC is read down as follows:

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape”.

It is, however, made clear that this judgment will have prospective effect.

It is also clarified that Section 198(6) of the Code will apply to cases of rape of “wives” below 18 years, and cognizance can be taken only in accordance with the provisions of Section 198(6) of the Code.

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Case Law on section 375

Tukaram        v.        State of Maharashtra      [1979 SC]

Briefly stated the prosecution case is this. Appellant No. 1, who is a Head Constable of police, was attached to the Desai Gunj police station in March 1972 and so was appellant No. 2, who is a police constable.

Mathura is the girl who is said to have been raped. Her parents died when she was a child and she is living with her brother, Gama. Both of them worked as labourers to earn a living. Mathura used to go to the house of Nushi for work and during the course of her visits to that house, came into contact with Ashok, who was the sister’s son of Nushi and was residing with the latter. The contact developed into an intimacy so that Ashok and Mathura decided to become husband and wife.

On the 26th of March 1972, Gama lodged report at police station Desai Gunj alleging that Mathura had been kidnapped by Nushi, her husband Laxman and the said Ashok. The report was recorded by Head Constable Baburao at whose instance all the three persons complained against as well as Mathura were brought to the police station at about 9 p.m. and who recorded the statements of the two lovers. By then it was about 10.30 p.m. and Baburao told them to go after giving them a direction that Gama shall bring a copy of the entry regarding the birth of Mathura and himself left for his house. At that time the two appellants were present at the police station.

After Baburao had gone away, Mathura, Nushi, Gama and Ashok started leaving the police station. The appellants, however, asked Mathura to wait at the police station and told her companions to move out. The direction was complied with. Immediately thereafter Ganpat appellant took Mathura into a latrine situated at the rear of the main building, loosened her underwear, lit a torch and stared at her private parts. He then dragged her to a chhapri which serves the main building as its back verandah. In the chhapri he felled her on the ground and raped her in spite of protests and stiff resistance on her part. He departed after satisfying his lust and then Tukaram appellant, who was seated on a cot nearby, came to the place where Mathura was and fondled her private parts. He also wanted to rape her but was unable to do so for the reason he was in a highly intoxicated condition.

Nushi, Gama and Ashok, who had been waiting outside the police station for Mathura grew suspicious when they found the lights of the police station being turned off and its entrance door being closed from within. They went to the rear of the police station in order to find out what the matter was. No light was visible inside and when Nushi shouted for Mathura there was no response. The noise attracted a crowd and some time later Tukaram appellant emerged from the rear of the police station, and on an enquiry from Nushi stated that the girl had already left. He himself went out and shortly afterwards Mathura also emerged from the rear of the police station and informed Nushi and Gama that Ganpat had compelled her to undress herself and had raped her.

Mathura was examined by Dr. Kamal Shastrakar at 8 p.m. on 27th of March 1972. The girl had no injury on her person. Her hymen revealed old ruptures. The vagina admitted two fingers easily. There was no matting of the pubic hair. The age of the girl was estimated by the doctor to be between 14 and 16 years. A sample of the pubic hair and two vaginal-smear slides were sent by the doctor in a sealed packet to the Chemical Examiner who found no traces of semen therein. Presence of semen was however detected on the girl’s clothes and the pyjama which was taken off the person of Ganpat appellant.

The Sessions Judge said she was “a shocking liar” whose testimony “is riddled with falsehood and improbabilities”. Mathura is habituated to sexual intercourse. This may be untrue, but there is no reason to exclude the possibility of his having stained his pyjama with semen while having sexual intercourse with persons other than Mathura. The seminal stains on Mathura can be similarly accounted for. She was after all living with Ashok and very much in love with him….” He then concluded that the prosecution had failed to prove its case against the appellants.

The High Court  held that the deposition of the girl that Ganpat appellant had sexual intercourse with her was reliable, supported as it was by circumstantial evidence, especially that of the presence of stains of semen on the clothes of the girl and Ganpat appellant. The fact that semen was found neither on the pubic hair nor on the vaginal-smears taken from her person was considered to be of no consequence by reason of the circumstance that the girl was examined by the lady doctor about 20 hours after the event, and of the probability that she had taken a bath in the meantime. The High Court proceeded to observe that although the Sessions Judge erred in appreciating the difference between consent and “passive submission”. In coming to the conclusion that the sexual intercourse in question was forcible and amounted to rape, the High Court remarked:

Besides the circumstances that emerge from the oral evidence on the record, we have to see in what situation Mathura was at the material time. Both the accused were strangers to her. It is not the case of the defence that Mathura knew both the accused or any of them since before the time of occurrence. It is therefore, indeed, highly improbable that Mathura on her part would make any overtures or invite the accused to satisfy her sexual desire. Indeed it is also not probable that a girl who was involved in a complaint filed by her brother would make such overtures or advances. The initiative must, therefore, have come from the accused and if such an initiative comes from this accused, indeed she could not have resisted the same on account of the situation in which she had found herself especially on account of a complaint filed by her brother against her which was pending enquiry at the very police station. If these circumstances are taken into consideration it would be clear that the initiative for sexual intercourse must have come from the accused or any of them and she had to submit without any resistance…. Mere passive or helpless surrender of the body and its resignation to the other’s lust induced by threats or fear cannot be equated with the desire or will, nor can furnish an answer by the mere fact that the sexual act was not in opposition to such desire or volition…. On the other hand, taking advantage of the fact that Mathura was involved in a complaint filed by her brother and that she was alone at the police station at the dead hour of night, it is more probable that the initiative for satisfying the sexual desire must have proceeded from the accused, and that victim Mathura must not have been a willing party to the act of the sexual intercourse.

In relation to Tukaram appellant, the High Court did not believe that he had made any attempt to rape the girl but took her word for granted in so far as he was alleged to have fondled her private parts after the act of sexual intercourse by Ganpat appellant.

Judgment of Supreme Court

As pointed out earlier, no marks of injury were found on the person of the girl after the incident and their absence goes a long way to indicate that the alleged intercourse was a peaceful affair, and that the story of a stiff resistance having been put up by the girl is all false. It is further clear that the averments on the part of the girl that she had been shouting loudly for help are also a tissue of lies. On these two points the learned Sessions Judge and the High Court also hold the same view. In coming to the conclusion that the consent of the girl was a case of “passive submission”, the High Court mainly relied on the circumstance that at the relevant time the girl was in the police station where she would feel helpless in the presence of the two appellants who were persons in authority and whose advances she could hardly repel all by herself and inferred that her submission to the act of sexual intercourse must be regarded as the result of fear and, therefore, as no consent in the eye of law. This reasoning suffers from two errors. In the first place, it loses sight of the fact which was admitted by the girl in cross-examination and which has been thus described in the impugned judgment:

She asserted that after Baburao had recorded her statement before the occurrence, she and Gama had started to leave the police station and were passing through the front door. While she was so passing, Ganpat caught her. She stated that she knew the name of accused No.2 as Ganpat from Head Constable Baburao while giving her report Ex. 5. She stated that immediately after her hand was caught by Ganpat she cried out. However, she was not allowed to raise the cry when she was being taken to the latrine but was prevented from doing so. Even so, she had cried out loudly. She stated that she had raised alarm even when the underwear was loosened at the latrine and also when Ganpat was looking at her private parts with the aid of a torch. She stated that the underwear was not loosened by her.

Now the cries and the alarm are, of course, a concoction on her part but then there is no reason to disbelieve her assertion that after Baburao had recorded her statement, she and Gama had started leaving the police station and were passing through the entrance door when Ganpat appellant caught hold of her and took her away to the latrine. And if that be so, it would be preposterous to suggest that although she was in the company of her brother (and also perhaps of Ashok and her aunt Nushi) and had practically left the police station, she would be so over-awed by the fact of the appellants being persons in authority in the circumstance that she was just emerging from a police station that she would make no attempt at all to resist. On the other hand, her natural impulse would be to shake off the hand that caught her and cry out for help even before she noticed who her molester was. Her failure to appeal to her companions who were no other than her brother, her aunt and her lover, and her conduct in meekly following Ganpat appellant and allowing him to have his way with her to the extent of satisfying his lust in full, makes us feel that the consent in question was not a consent which could be brushed aside as “passive submission.”

Secondly, it has to be borne in mind that the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and that such onus never shifts. It was, therefore, incumbent on it to make out that all the ingredients of Section 375 of the I.P.C. were present in the case of the sexual intercourse attributed to Ganpat appellant. The section itself states in clauses thirdly and fourthly as to when a consent would not be a consent within the meaning of clause Secondly. For the proposition that the requisite consent was lacking in the present case, reliance on behalf of the State can be placed only on clause thirdly so that it would have to be shown that the girl had been put in fear of death or hurt and that was the reason for her consent. Further, for circumstantial evidence to be used in order to prove an ingredient of an offence, it has to be such that it leads to no reasonable inference other than that of guilt. We have already pointed out that the fear which clause thirdly of Section 375 speaks of is negatived by the circumstance that the girl is said to have been taken away by Ganpat right from amongst her near and dear ones at a point of time when they were all leaving the police station together and were crossing the entrance gate to emerge out of it. The circumstantial evidence available, therefore, is not only capable of being construed in a way different from that adopted by the High Court but actually derogates in no uncertain measure from the inference drawn by it.

Decision

In view of what we have said above, we conclude that the sexual intercourse in question is not proved to amount to rape and that no offence is brought home to Ganpat appellant.

The only allegation found by the High Court to have been brought home to Tukaram appellant is that he fondled the private parts of the girl after Ganpat had left her. The High Court itself has taken note of the fact that in the first information report (Ex. 5) the girl had made against Tukaram serious allegations on which she had gone back at the trial and the acts covered by which she attributed in her deposition to Ganpat instead. Those allegations were that Tukaram who had caught hold of her in the first instance, had taken her to the latrine in the rear of the main building, had lit a torch and had stared at her private parts in the torchlight.

Now if the girl could alter her position in regard to these serious allegations at will, where is the assurance that her word is truthful in relation to what she now says about Tukaram? The High Court appears to have been influenced by the fact that Tukaram was present at the police station when the incident took place and that he left it after the incident. This circumstance, in our opinion, is not inculpatory and is capable of more explanations than one. We do not, therefore, propose to take the girl at her word in relation to Tukaram appellant and hold that the charge remains wholly unproved against him.

In the result, the appeal succeeds and is accepted. The judgment of the High Court is reversed and the conviction recorded against the appellants by it is set aside.

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 State of Punjab      v.      Gurmit Singh      [1996  SC]

Facts of the case

The prosecutrix a young girl below 16 years of age, was studying in the 10th class at the relevant time in Government High School, Pakhowal. The matriculation examinations were going on at the material time.  On 30-3- 1984 at about 12.30 p.m. after taking her test in Geography, the prosecutrix was going to the house of her maternal uncle, a blue Ambassador car came from behind. In that car Gurmit Singh, Jagjit Singh and Ranjit Singh accused were sitting. Ranjit Singh accused came out of the car and caught hold of the prosecutrix from her arm and pushed her inside the car.  All the three accused drove her to the tube well of Ranjit Singh accused. She was taken to the ‘kotha’ of the tube well.

In the said kotha Gurmit Singh compelled the prosecutrix to take liquor. Gurmit Singh then removed her salwar and also opened her shirt. She was made to lie on a cot in the kotha while his companions guarded the kotha from outside. Gurmit Singh committed rape upon her. After Gurmit Singh had committed rape upon her, the other two accused, who were earlier guarding the kotha from outside, came in on by one and committed rape upon her.  Each one of the accused committed sexual intercourse with the prosecutrix forcibly and against her will. They all subjected her to sexual intercourse once again during the night against her will.

Next morning at about 6.00 a.m. the three accused made her sit in car and left her near the place from where she had been abducted. The prosecutrix had to take her examination in the subject of Hygiene on that date. She, after taking her examination in hygiene, reached her village Nangal-Lalan, at about noon time and narrated the entire story to her mother.

The grounds on which the trial court disbelieved the version of the prosecutrix are not at all sound. The findings recorded by the trial court rebel against realism and lose their sanctity and credibility.  The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable.

Seeking corroboration of her statement before replying upon the same as a rule in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman, who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding.

Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.

In the instant case our careful analysis of the statement of the prosecutrix has created an impression on our minds that she is a reliable and truthful witness. Her testimony suffers from no infirmity or blemish whatsoever. We have no hesitation in acting upon her testimony alone without looking for any ‘corroboration’.

Moreover, the unchallenged fact that it was the prosecutrix who had led the investigating officer to the kotha of the tube well of Ranjit Singh, where she had been raped, lent a built-in assurance that the charge levied by her was ‘genuine’ rather than ‘fabricated’ because it is no one’s case that she knew Ranjit Singh earlier or had ever seen visited the kotha at his tube well. The trial court completely overlooked this aspect.

The trial court found that the relations between the family of Gurmit Singh and of the prosecutrix were strained on account of civil litigation pending between the parties and that was also the reason to falsely implicate Gurmit Singh. Even if it be assumed for the sake of argument that there was some such litigation, it could hardly be a ground for a father to put forth his daughter to make a wild allegation of rape against the son of the opposite party, with a view to take revenge. It defies human probabilities. No father could stoop so low as to bring forth a false charge of rape on his unmarried minor daughter with a view to take revenge from the father of an accused on account of pending civil litigation. In any case, there is no proof of the existence of such enmity.

What has shocked our judicial conscience all the more is the inference drawn by the court, based on no evidence and not even on a denied suggestion, to the effect: The more probability is that (prosecutrix) was a girl of loose character. She wanted to dupe her parents that she resided for one night at the house of her maternal uncle, but for reasons best known to her, she did not do so and she preferred to give company to some persons.

We must express our strong disapproval of the approach of the trial court and its casting a stigma on the character of the prosecutrix. The courts are expected to use self-restraint while recording such findings. Even if the prosecutrix, in a given case, has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. No stigma, like the one as cast in the present case should be cast against such a witness by the courts, for after all it is the accused and not the victim of sex crime who is on trial in the court.

We find that the prosecutrix has made a truthful statement and the prosecution has established the case against the respondents beyond every reasonable doubt.  We accordingly convict all the three respondents for offences under Sections 363/366/368 and 376 IPC.

So far as the sentence is concerned, the court has to strike a just balance. In this case the occurrence took place on 30-3-1984 (more than 11 years ago). The respondents were aged between 21-24 years of age at the time when the offence was committed. We are informed that the respondents have not been involved in any other offence after they were acquitted by the trial court on 1-6-1985, more than a decade ago. All the respondents as well as the prosecutrix must have by now got married and settled down in life. These are some of the factors which we need to take into consideration while imposing an appropriate sentence on the respondents. We accordingly sentence the respondents for the offence under Section 376 IPC to undergo five years’ R.I. each.

We must remember that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault, it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim; a rapist degrades the very soul of the helpless female. 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 which may lend assurance to her testimony, short of corroboration required in the case of an accomplice.

Instructions to courts

There has been lately lot of criticism of the treatment of the victims of sexual assault in the court during their cross-examination. The court, therefore, should not sit as a silent spectator while the victim of crime is being cross-examined by the defence. It must effectively control the recording of evidence in the court.

Recently, section 327 of the Code of Criminal Procedure which deals with the right of an accused to an open trial was amended. In spite of the amendment, however, hardly does one come across a case where the inquiry and trial of a rape case has been conducted by the court in camera. The expression that the inquiry into and trial of rape “shall be conducted in camera” as occurring in Section 327(2) Cr.P.C is not only significant but very important. It casts a duty on the court to conduct the trial of rape cases etc. invariably “in camera”.

It would enable the victim of crime to be a little comfortable and answer the questions with greater ease in not too familiar surroundings. Trial in camera would not only be in keeping with the self-respect of the victim of crime and in tune with the legislative intent but is also likely to improve the quality of the evidence of a prosecutrix because she would not be so hesitant or bashful to depose frankly as she may be in an open court, under the gaze of public. The improved quality of her evidence would assist the courts in arriving at the truth and sifting truth from falsehood.

It may also be worth considering whether it would not be more desirable that the cases of sexual assaults on the females are tried by lady Judges, wherever available, so that the prosecutrix can make her statement with greater ease and assist the courts to properly discharge their duties, without allowing the truth to be sacrificed at the altar of rigid technicalities while appreciating evidence in such cases.

The courts should, as far as possible, avoid disclosing the name of the prosecutrix in their order to save further embarrassment to the victim of sex crime. We hope that trial courts would take recourse to provisions of Sections 327(2) and (3) CrPC liberally. Trial of rape cases in camera should be the rule and an open trial in such cases, an exception.

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 Bharwada Bhoginbhai Hirijibhai        v.      State of Gujarat      [1983  SC]

In the Indian setting refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule is adding insult to injury. A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society and when in the face of these factors the crime is brought to light, there is an inbuilt assurance that the charge is genuine rather than fabricated.

Just as a witness who has sustained an injury, which is not shown or believed to be self-inflicted, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of sex offence is entitled to great weight, absence of corroboration notwithstanding. A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case.

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State of Maharashtra    v.   Chandraprakash Kewalchand Jain   [1990  SC]

A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime.

The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more.

What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration.

If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy.

If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.

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Bhupinder Singh        v.       U.T. of Chandigarh        [2008 SC]

Facts of the case

Complainant Manjit Kaur filed a complaint stating that she was employed as Clerk in Bank Employees Thrift Credit Society. She was daily commuting from Naraingarh. Accused Bhupinder Singh was employed as Data Entry Operator in State Bank of Patiala at Chandigarh. He used to come to her office and developed intimacy and then asked her to marry after disclosing himself as an unmarried person. Accused Bhupinder Singh insisted upon her to get married at the earliest in a Gurudwara through a simple ceremony and said that permission from the parents can be taken later on and that thereafter marriage would be solemnized with great pomp and show. Then she agreed to the proposal of the accused.

Then on 4.12.1990, Manjit Kaur and Bhupinder Singh got solemnized their marriage in Gurudwara after exchanging garland before the holy Granth Sahib. Then she stayed with the accused in Sector 22-C, Chandigarh. Accused had taken a loan of Rs. 5000 from a society at Panchkula in May 1991, where he had nominated her as his wife. She became pregnant, but accused got her aborted from Kaushal Nursing Home against her wishes.  She again became pregnant in July 1993 and their relations remained cordial till March, 1994.

On 6.3.1994 when she had gone to Rose Garden, she met Devinder Bansal and Vinod Sharma, who were friends of her husband Bhupinder Singh. Those persons told her that accused Bhupinder Singh was already married with one Gurinder Kaur and was having children from the said wedlock. She was shocked to learn this and after reaching the residence, she asked about Bhupinder Singh, who on the same day had left for Patiala on the pretext of attending some training course and did not return till 13.3.1994.

On 16.4.1994, she was admitted in General Hospital and gave birth to a female child. She informed Bhupinder Singh about this as he was father of the child. But Bhupinder Singh did not turn up.

In his statement under Section 313 of the “Code” the appellant took the stand that he started knowing the appellant after his marriage with Gurinder Kaur. The complainant was known to his wife before her marriage with him and she had come along with her mother to their place in 1988 in Sector 23, Chandigarh where her mother requested him to get her a job as she had finished the studies and wanted to get a job. The complainant stayed in their house for six months. Thereafter, he arranged a job for her. However, she had shifted and being of loose morals, entertained many people. When he learnt that she was of loose morals and was going out with different persons at odd hours, he objected and told the complainant to mend her ways. But she started fighting with him and demanded money which he does not pay and, after delivery of the child, she filed a false complaint.

Gurinder Kaur stated that he knew the complainant prior to her marriage.

Documents were also produced to show that in official documents, accused-appellant had  shown the complainant as his wife and nominee.

The High Court found that the case at hand was covered by Clause “Fourthly” of Section 375 IPC and, therefore, was guilty of the offence and was liable for punishment under Section 376 IPC. But, taking into account the fact that the complainant had knowledge about his marriage and had yet surrendered to him for sexual intercourse, held this to be a fit case for reduction of sentence and award of adequate compensation. Accordingly, custodial sentence of three years’ rigorous imprisonment was imposed in place of seven years rigorous imprisonment as was done by the trial court. The compensation was fixed at Rs.1,00,000 which was directed to be paid within three months.

Learned counsel for the accused-appellant submitted that when the complainant knew that he was a married man and yet consented for sexual intercourse with him, clause “fourthly” of Section 375 IPC would have no application.

Clause “fourthly” of Section 375 IPC reads as follows:

A man is said to commit “rape”, who has sexual intercourse with a woman…

…with her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Though it is urged with some amount of vehemence that when the complainant knew that he was a married man, clause “fourthly” of Section 375 IPC has no application, the stand is clearly without substance. Even though, the complainant claimed to have married the accused, which fact is established from several documents, that does not improve the situation so far as the accused-appellant is concerned. Since, he was already married, the subsequent marriage, if any, has no sanctity in law and is void ab-initio. In any event, the accused-appellant could not have lawfully married the complainant. A bare reading of clause “fourthly” of Section 375 IPC makes this position clear.

It is pointed out by learned counsel for the appellant that the date of knowledge claimed by the complainant is 6.3.1994, but the first information report was lodged on 19.9.1994. The complainant has explained that she delivered a child immediately after learning about the incident on 16.4.1994 and, therefore, was not in a position to lodge the complaint earlier. According to her she was totally traumatized on learning about the marriage of the accused-appellant.

Though the explanation is really not satisfactory, but in view of the position in law that the accused was really guilty of the offence punishable under Section 376 IPC, the delayed approach of the complainant cannot, in any event, wash away the offence.

The appeal filed by the accused is dismissed. The High Court has reduced the sentence taking note of the peculiar facts of the case, more particularly, the knowledge of the complainant about the accused being a married manThe High Court has given sufficient and adequate reasons for reducing the sentence and awarding compensation of Rs.1,00,000. The reasons indicated by the High Court do not suffer from any infirmity and, therefore, the appeal filed by the complainant is without merit and is dismissed.

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Bhupinder   Sharma     v.      State  of  Himachal  Pradesh    [2003 SC]

Facts of the case

The victim aged about 16 years had gone to Solan in 1998 to purchase medicines for her ailing grandfather. She had gone to Solan for the first time and reached the bus-stand at about 2.00 p.m. After having alighted from the bus, she enquired from a lady as to where a particular medicine shop was located. The lady stated ignorance.

At this juncture, two persons came there and asked her to accompany them in a three-wheeler as they were both going to the shop concerned. The victim was taken by the two boys, namely, accused Ashish Kanwar and Suresh to an isolated place in a jungle. After gagging her mouth, she was taken to a house which was below the road. There were four more boys.  The victim was sexually abused firstly by accused Ashish followed by accused Sunil, Suresh and Ruby.

The appellant Bhupinder and Shanker (not tried) were in the process of taking off their clothes with a view to perpetuate sexual abuse when the victim managed to escape with only a shirt and ran away barefooted. When she reached near the road, she saw Chaman Lal, ASI who was accompanied by police officers.  When the victim described the ghastly incident to them, she was taken to the room where she had been raped, but it was found that all six of them had fled away.

The present appellant Bhupinder was sentenced to undergo RI for four years for the offence relatable to Section 376 read with Section 34 IPC. In case of the present appellant, a departure was made so far as sentence is concerned because the trial court was of the view that he had not actually committed rape and the victim had escaped before he could do so.

The High Court issued suo motu notice of enhancement of sentence in respect of appeals filed by the present appellant Bhupinder and accused Ashish. It took note of Explanation 1 to sub-section (2) of Section 376 IPC as the case was one of gang rape. It was observed that not only the said Explanation 1 but also the provisions of Section 114-A of the Indian Evidence Act, 1872 applied. Accordingly, it was held that involvement of accused-appellant Bhupinder cannot be ruled out though he may not have actually raped the victim. In view of the specific provision relating to sentence and in the absence of any adequate and special reason having been indicated by the trial Judge, the minimum sentence was to be imposed. With these findings the sentence was enhanced.

The stand as appears from the memorandum of appeal and the written submission made is that at the most the appellant can be held guilty of an attempt to commit the offence and not commission of the offence itself.

Sections 375 and 376 have been substantially changed by the Criminal Law (Amendment) Act. 1983, and several new sections were introduced by the new Act i.e. Sections 376-A, 376-B, 376-C and 376-D. The fact that sweeping changes were introduced reflects the legislative intent to curb with an iron hand, the offence of rape which affects the dignity of a woman. The offence of rape in its simplest term is “the ravishment of a woman, without her consent, by force, fear or fraud” or as “the carnal knowledge of a woman by force against her will”. In the crime of rape, “carnal knowledge” means the penetration to the slightest degree of the organ alleged to have been carnally known by the male organ of generation. In Halsbury’s Statutes of England and Wales, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It is violation with violence of the private persons of a woman -an outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order.

The physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole the case spoken to by the victim strikes a judicial mind as probable. Judicial response to human rights cannot be blunted by legal jugglery.

To insist on corroboration except in the rarest of rare cases is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhoodIt would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance.

In cases of gang rape proof of completed act of rape by each accused on the victim is not required. The statutory intention in introducing Explanation I in relation to Section 376(2)(g) appears to have been done with a view to effectively deal with the growing menace of gang rape. In such circumstances, it is not necessary that the prosecution should adduce clinching proof of a completed act of rape by each one of the accused on the victim or on each one of the victims where there are more than one in order to find the accused guilty of gang rape and convict them u/s 376 IPC.

Both, in cases of sub-sections (1) and (2) the court has the discretion to impose a sentence of imprisonment less than the prescribed minimum for “adequate and special reasons”. If the court does not mention such reasons in the judgment there is no scope for awarding a sentence lesser than the prescribed minimum.

In order to exercise the discretion of reducing the sentence the statutory requirement is that the court has to record “adequate and special reasons” in the judgment and not fanciful reasons which would permit the court to impose a sentence less than the prescribed minimum. The reason has not only to be adequate but special. What is adequate and special would depend upon several factors and no straitjacket formula can be imposed.

In the case at hand, the only reason which seems to have weighed with the trial court is that the present accused-appellant had not actually committed the rape. That cannot be a ground to warrant lesser sentence; more so, in view of Explanation I to sub section (2) of Section 376. By operation of a deeming provision a member of a group of persons who have acted in furtherance of their common intention per se attracts the minimum sentence. Section 34 has been applied by both the trial court and the High Court, to conclude that rape was committed in furtherance of common intention. Not only was the accused-appellant present, but he was also waiting for his turn, as is evident from the fact that he was in the process of undressing. The evidence in this regard is cogent, credible and trustworthy. Since no other just or special reason was given by the trial court nor could any such be shown as to what were the reasons to warrant a lesser sentence, the High Court was justified in awarding the minimum prescribed sentence.

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Priya Patel        v.      State of Madhya Pradesh     [2006  SC]

Can a lady be prosecuted for gang rape is the interesting question involved in this appeal.

Facts of the case:

Complaint was lodged by the prosecutrix alleging that she was returning by Utkal Express after attending a sports meet. When she reached her destination at Sagar, accused Bhanu Pratap Patel (husband of the accused appellant) met her at the railway station and told her that her father has asked him to pick her up from the railway station. Since the prosecutrix was suffering from fever, she accompanied accused Bhanu Pratap Patel to his house. He committed rape on her.

When commission of rape was going on, his wife, the present appellant reached there. The prosecutrix requested the appellant to save her. Instead of saving her, the appellant slapped her, closed the door of the house and left place of incident.  While accused Bhanu Pratap Patel was charged for offences punishable under Sections 323 and 376 IPC, the appellant  was charged for commission of offences punishable under Sections 323 and 376(2)(g) IPC.

The High Court was of the view that though a woman cannot commit rape, but if a woman facilitates the act of rape, Explanation-I to Section 376(2) comes into operation and she can be prosecuted for “gang rape”.

The Law

A bare reading of Section 375 makes the position clear that rape can be committed only by a man. Section 376(2) makes certain categories of serious cases of rape as enumerated therein attract more severe punishment. One of them relates to “gang rape”. The language of sub-Section (2)(g) provides that “whoever commits “gang rape” shall be punished etc. The Explanation only clarifies that when a woman is raped by one or more in a group of persons acting in furtherance of their common intention each such person shall be deemed to have committed gang rape within this sub-section (2). That cannot make a woman guilty of committing rape.

This is conceptually inconceivable. The Explanation only indicates that when one or more persons act in furtherance of their common intention to rape a woman, each person of the group shall be deemed to have committed gang rape. By operation of the deeming provision, a person who has not actually committed rape is deemed to have committed rape even if only one of the group in furtherance of the common intention has committed rape.

“Common intention” is dealt with in Section 34 IPC and provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. “Common intention” denotes action in concert and necessarily postulates a pre-arranged plan, a prior meeting of minds and an element of participation in actionThe acts may be different and vary in character, but must be actuated by the same common intention, which is different from same intention or similar intention. The sine qua non for bringing in application of Section 34 IPC is that the act must be done in furtherance of the common intention to do a criminal act. The expression “in furtherance of their common intention”, as appearing in the Explanation to Section 376(2), relates to intention to commit rape. A woman cannot be said to have an intention to commit rape. Therefore, the appellant cannot be prosecuted for commission of the offence punishable under Section 376(2)(g).

The residual question is whether she can be charged for abetment. This is an aspect which has not been dealt with by the Trial Court or the High Court. If in law, it is permissible and the facts warrant such a course to be adopted, it is for the concerned court to act in accordance with law. We express no opinion in that regard.

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  Sakshi           v.       Union of India       [2004  SC]

This writ petition under Article 32 of the Constitution has been filed by way of public interest litigation, by Sakshi, which is an organisation to provide legal, medical, residential, psychological or any other help, assistance or charitable support for women, in particular those who are victims of any kind of sexual abuse or harassment or violence.

The main question which requires consideration is whether by a process of judicial interpretation the provisions of Section 375 IPC can be so altered so as to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vaginal and finger/anal penetration and object/vaginal penetration, within its ambit. Section 375 uses the expression “sexual intercourse” but the said expression has not been defined. The dictionary meaning of the words “sexual intercourse” is heterosexual intercourse involving penetration of the vagina by the penis.

The Indian Penal Code was drafted by the First Indian Law Commission of which Lord Macaulay was the President. It was presented to the Legislative Council in 1856 and was passed on 6-10-1860. The Penal Code has undergone very few changes in the last more than 140 years. Except for clause sixthly of Section 375 regarding the age of the woman no major amendment has been made in the said provision. Sub-section (2) of Section 376 and Sections 376-A to 376-D were inserted by the Criminal Law (Amendment) Act, 1983 but sub-section (2) of Section 376 merely deals with special types of situations and provides for a minimum sentence of 10 years. It does not in any manner alter the definition of “rape” as given in Section 375 IPC. Similarly, Section 354 which deals with assault or criminal force to woman with an intent to outrage her modesty and Section 377 which deals with unnatural offences have not undergone any major amendment.

An exercise to alter the definition of rape, as contained in Section 375 IPC, by a process of judicial interpretation, and that too when there is no ambiguity in the provisions of the enactment, is bound to result in a good deal of chaos and confusion, and will not be in the interest of the society at large.

The writ petition is accordingly disposed of with the following directions:

(1) The provisions of sub-section (2) of Section 327 Cr.P.C. shall, in addition to the offences mentioned in the sub-section, also apply in inquiry or trial of offences under Sections 354 and 377 IPC.

(2) In holding trial of child sex abuse or rape:

(i) a screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused

(ii) questions put in cross-examination on behalf of the accused, insofar as they relate directly to the incident, should be given in writing to the presiding officer of the court who may put them to the victim or witnesses in a language which is clear and is not embarrassing

iii) the victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required.

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House of Lords on marital rape in R. v. R. [All ER 481]

The rule that a husband cannot be criminally liable for raping his wife if he has sexual intercourse with her without her consent no longer forms part of the law of England since a husband and wife are now to be regarded as equal partners in marriage and it is unacceptable that by marriage the wife submits herself irrevocably to sexual intercourse in all circumstances or that it is an incident of modern marriages that the wife consents to intercourse in all circumstances, including sexual intercourse obtained only by force.

In Section 1(1) of the Sexual Offences (Amendment) Act, 1976, which defines rape as having “unlawful” sexual intercourse with a woman without her consent, the word “unlawful” is to be treated as mere surplusage and not as meaning “outside marriage”, since it is clearly unlawful to have sexual intercourse with any woman without her consent.

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