This article has been authored by Anindita Deb, a student pursuing BBA.LLB. from Symbiosis Law School, NOIDA. The objective of this article is to exhaustively discuss Section 376 of IPC, 1860, its relevant provisions, and other related provisions of law which come into play with respect to the Section.
This article has been published by Sneha Mahawar.
Table of Contents
Rape is one of the most heinous crimes in the modern-day world, and despite the progress in education and societal development, this social evil is beyond tame to date. On the contrary, rape cases have seen an incessant increase in recent years. Rape leaves the victim in severe physical and emotional turmoil, in addition, the victims are also ignored and ostracised in society for merely being victims of something which did not even arise out of their own fault. It is important, now more than ever, that the people committing such an act get the maximum and most severe punishment possible so that justice is ensured and instances of rape are minimised in the future.
The scope of the article is to briefly discuss rape, and then elaborate on the punishment provided for rape, given under Sections 376, and 376A-E of the Indian Penal Code, 1860. The article has also discussed the subsequent amendments to the Section and how it has shaped the law surrounding rape in the country.
What is rape
Rape is an illegal sexual activity that involves sexual intercourse against the victim’s will, either by force or threat of force, or against someone who is unable to give consent due to mental illness, intoxication, deception, or unconsciousness. Rape is classified as a type of sexual assault in many countries. Previously, it was thought to be caused by an overwhelming sexual desire, but it now appears to be caused by a persistent assertion of power over the victim. On being interviewed, the majority of the perpetrators have testified that they committed rape upon the victim because they seemed to talk rudely to them, were out partying late at night (which they considered outrageous on part of the women), or simply to “show the woman her place”, in their words. The conditions that lead to the commission of rape during sexual intercourse between a man and a woman are listed in Section 375 of the IPC.
According to the Section, the act of penetrating is sufficient to be considered sexual intercourse, and if such penetration is forced, it will be termed as rape. In Sakshi v. Union of India (2004), the Supreme Court affirmed the concept of rape, ruling that only heterosexual intercourse, such as vaginal and penial penetration, is rape. The Court explained that, while there are numerous forms of sexual abuse that are horrific in character, not every sexual offence can be termed rape.
Punishment for rape (Section 376 IPC)
The punishment for rape has been provided under Section 376 of the Indian Penal Code, 1860. The Section prescribes punishment for rape in the form of imprisonment of either description which lasts upto at least 7 years, but which may extend to 10 years or life imprisonment (imprisonment till the person dies a natural death in the prison), and the convict is also liable to pay fine. If the rape is committed by a husband on his wife while they were separated, and the wife was above 12 years of age, the husband will be awarded imprisonment of either description upto 2 years, or he will be charged with a fine, or he will be liable with both.
The Court has the authority to prescribe imprisonment for less than 7 years under special circumstances.
Clause 2 of Section 376 has subclauses (a) to (g) which provide punishment for aggravated forms of rape such as custodial rape, rape on a pregnant woman, gang rape, rape by a police officer, or by a public servant, etc.
Nature of Section 376 IPC
The offence committed under Section 375 which is punished under Section 376 of the IPC is cognizable in nature. A cognizable offence is one in which a police officer, under the first schedule or any other legislation in effect, can arrest a suspect without a warrant and begin an investigation without the court’s consent. Murder, rape, kidnapping, theft, dowry death, and other horrific or serious crimes are examples of cognizable offences. Only cognizable offences generate a First Information Report (FIR).
The offence under Section 376 is non-bailable in nature, i.e., bail is not a matter of right for the accused, which is the case in bailable offences. The judge shall only grant bail to the accused if he deems it fit for the case.
Triable by any court
The offence of rape can be tried in any court of law within the territory of India, according to the first schedule of the Code of Criminal Procedure, 1973 (CrPC).
Section 376 IPC before the introduction of amendments
After the terrible Delhi Gang Rape Case (Nirbhaya Rape Case) in 2013, the rape laws were changed. The widespread agitation over the violent gang rape in the capital city, which ultimately resulted in the death of the physiotherapy intern, was the driving cause for the passage of the Criminal Law Amendment Act, 2013. The Act broadened the definition of “Rape” as defined in Section 375 of the IPC. Earlier, the minimum number of years for the punishment of rape was not mentioned in the Section, which has now been changed and stands as follows:
- Subsection 1 addresses the punishment for rape of a woman in all circumstances other than those listed in Section 376(2). In such circumstances, the punishment was rigorous imprisonment for a period of not less than 7 years, which might be extended to life imprisonment and a fine.
- Subsection 2 addresses the penalties for the rape of a woman by police officials, public servants, members of the armed forces, and others. The punishment is a minimum of ten years in jail, with the possibility of life imprisonment (i.e., imprisonment for the rest of his life) and a fine.
Changes introduced by the Criminal Law (Amendment) Act, 2013 in Section 376 IPC
Following the outcry produced by the Nirbhaya case, the Criminal Amendment Act of 2013 was approved, which made significant revisions to the definition and punishment of rape, which had previously been found to be insufficient. The Justice Verma Committee was established to gather proposals for the legislature’s consideration in developing a legal framework to address rape and other crimes against women. In a short period of time, the Committee received approximately 80,000 recommendations on which to deliberate. Activists, lawyers, NGOs, and other members of the so-called “civil society” sent these recommendations. The proposals were made as an ordinance because the legislature had adjourned, preventing the introduction of the amended Act. The crime of rape was given a broader definition under the ordinance, which included any sort of penetration, including any area of the victim’s body.
Voyeurism (Section 354C) was also made an offence by the Amendment, which was previously not a crime under the Indian Penal Code. The recording or viewing of photographs, movies, or other forms of media without the permission of the person portrayed or screened in them is known as voyeurism. Prior to the 2013 Amendment, the Indian Penal Code did not specify a minimum sentence for rape, which is now seven years and can be extended up to life imprisonment with a fine. It also introduced fourteen circumstances in which the penalty for rape must be at least ten years in jail and may include imprisonment for the rest of the accused’s natural life or death. The following is a list of these scenarios:
- Rape by a police officer.
- Rape by a public servant.
- Rape by armed force personnel.
- Rape by the management or staff of a jail, remand home.
- Rape by the management or staff of a hospital.
- Rape by a relative, guardian or teacher.
- Rape during communal or sectarian violence.
- Rape of pregnant women.
- Rape of a woman under sixteen.
- Rape of a woman incapable of giving consent.
- Committing rape being in a position of control and dominance over a woman.
- Rape of a woman suffering from mental or physical disability.
- While committing rape causes grievous harm or maims or disfigures or endangers the life of a woman.
- Commits rape repeatedly on the same woman.
The Act became effective on February 3, 2013. It added five provisions to Section 376 (from 376A to 376E) which are explained hereunder.
Section 376A of IPC
Punishment for causing death or putting the person into a vegetative state. This clause punishes a man who commits an act against a woman that results in her being injured, going into a vegetative state, or dying. In situations under section 376 A, the sentence must be at least 20 years, although it can be increased to life imprisonment. It is a non-bailable and cognizable offence that can be tried in the Court of Session.
Section 376B of IPC
This Section outlines the consequences of a husband having sexual relations with his wife when separated. A husband cannot be found guilty of rape against his wife under general principles. Marriage is a relationship in which both the husband and wife are able to use their marital rights. Sexual intercourse by the husband without her agreement is punishable under this Section when the woman lives separately from her husband under a judicial separation decision. Under these instances, sexual intercourse means the same thing as it does in Section 375 clauses (a) to (d).
Section 376C of IPC
Sexual intercourse by a person in power is punishable under this Section. If a person in authority or under the influence of his power seduces or takes advantage of a woman, that person shall be held accountable for the offence under this Section. Sexual intercourse in these situations will not be considered rape, but will result in a sentence of not less than 5 years, with the possibility of a 10-year sentence and a fine.
Section 376D of IPC
Gang rape offences are punishable under this Section. Gang rape occurs when a woman is raped by multiple people who all have the same aim to rape her. Offenders face a sentence of no less than 20 years in jail, with the possibility of being sentenced to life in prison.
Section 376E of IPC
Punishment for repeat offenders is defined in this Section. If a person has been previously convicted of an offence under Section 376, 376 A, or 376 D and commits the same offence again, he or she will be sentenced to life in prison.
The Criminal Law (Amendment) Act of 2018 and the changes it brought to Section 376 IPC
After the horrifying incident of the Kathua rape case in the year 2018, in which an 8-year-old girl was kidnapped and gang raped, it became the need of the hour to make the laws surrounding punishment for this devilish crime more stringent. As a result, the Criminal Law (Amendment) Act was enacted in 2018. The following changes were incorporated in Section 376:
- Rape against a woman under the age of 12 is now punishable by a minimum sentence of 20 years in jail, with the possibility of life imprisonment, as well as a fine or death.
- The punishment for gang rape of a lady under the age of 12 is now life imprisonment, a fine, or death.
- Females under the age of 16 might face up to 20 years in prison or life in prison if they are raped. A person who is sentenced to life imprisonment will be held in jail for the rest of his or her natural life. For rape of a female over the age of 16, the minimum sentence is ten years in jail.
Difference between Section 375 and Section 376 IPC
Sections 375 and 376 both deal with the same crime, the only difference between the two Sections being that Section 375 provides the definition of the crime, while Section 376 provides the punishment for the crime once the charge against the accused has been proved. The accused will then be convicted of rape under Sections 375 and 376. Section 376(2) contains punishment for aggravated forms of rape.
Landmark cases related to Section 376 IPC
Priya Patel v. State of MP (2006)
Facts of the case
In this case, the appellant was the wife of the accused, who had kidnapped and raped a minor girl. When the appellant entered the room, the prosecutrix asked her but she slapped the girl and walked out of the room. The wife was then charged for gang rape along with her husband under Section 376(2)(g).
Judgement of the Court
The Supreme Court of India ruled that according to the definition of rape set under Section 375 of the Indian Penal Code, a woman cannot commit rape. Also, while committing gang rape, the accused should share a common intention to rape the victim, and since the wife only slapped the girl and the statute renders a woman incapable of committing rape, she cannot be convicted under Section 376.
Mukesh & Anr. v. State for NCT of Delhi & Ors. (2017)
Facts of the case
This case is famously known all across India as the “Nirbhaya rape case”. This case was the foundation of the criminal law amendments that came into force in 2013. The case’s facts are based on a rape committed by six guys on a moving bus in Delhi on December 16, 2012. The victim’s real identity has never been revealed, although she is referred to as Nirbhaya in all conversations. Nirbhaya, a 23-year-old girl, was waiting for a bus late at night with a companion. She was persuaded and compelled to board the empty bus. The driver, together with five other passengers, including a 17-year-old juvenile, committed a brutal sexual assault. Those 6 members beat up a friend who sought to defend Nirbhaya from such violent conduct. The horrific rape and several more painful injuries occurred on the running bus. She was eventually admitted to the hospital for treatment, but she passed away in the process. Physical and mental instability, multiple organ failure, internal bleeding, cardiac arrest, and a variety of other issues resulting from the rape were the cause of her death.
Judgment of the Court
In the historic case of Nirbhaya, a bench of Chief Justice Dipak Misra, Justice R Banumathi, and Justice Ashok Bhushan gave the decision in which the remaining four culprits among the six were sentenced to death. Mukesh, Pawan Gupta, Vinay Sharma, and Akshay Kumar Singh were sentenced to death, while the juvenile was convicted by the Juvenile Justice Board and sentenced to three years in a reformatory home. Ram Singh was the sixth and final defendant. Before being convicted, he committed suicide in jail. Though it was argued that the case did not fit under the rarest of rare cases, the Supreme Court rejected this argument and sentenced the convicts to death. The four culprits were hanged in Tihar Jail at 5:30 a.m. on March 20, 2020, which was applauded by the populace.
Tulshidas Kanolkar v. The State of Goa (2001)
Facts of the case
The victim, in this case, was mentally challenged due to congenital dumbness. The defendant took advantage of her mental state and engaged in sexual activity with her. No one knew about it until the victim’s family discovered she was pregnant. She pointed fingers at the accused when she was asked who took advantage of her. He was charged with the crime and entered a plea of consent in the form of submission to the act.
Judgment of the Court
The accused was held to be taking advantage of the patient’s mental impairment and helplessness. Because a mentally challenged girl is unable to offer consent, there is no question of consent in this case. And submission is not the same as consent, which can be based on fear, tainted by duress, or hindered by mental retardation. The culprit was ordered to pay a fine of Rs. 10,000 and to serve ten years in prison as punishment under Section 376 of the IPC.
Dileep Singh v. State of Bihar (2004)
Facts of the case
The accused and the victim, in this case, were neighbours. They fell in love, and the accused coerced the girl into having sexual relations with him. He continued to have sexual intercourse with her after promising her that he would marry her. When the girl’s parents found out she was pregnant, they filed a complaint against him. He said that the girl gave her consent and that he never forced her.
Judgment of the Court
The man was charged with rape under Section 376 of the Indian Penal Code. The consent of the girl for sexual intercourse was obtained by deceit, according to the Supreme Court, because he promised to marry her. Consent given by deception of the victim is not valid consent.
State of Punjab v. Gurmit Singh (1996)
Facts of the case
The girl in this case was in 10th grade, and her final examinations were underway. She was returning home after her exam when she was kidnapped by the accusers in a van. They took her to a kothi belonging to one of them, she was forced to drink alcohol, and then all three of them raped her. She was told that if she did not comply or raise an alert, she would be killed.
Judgment of the Court
The Court found the three of them guilty of rape under Section 376 of the Indian Penal Code since she did not readily consent to the act. The Supreme Court also established a set of guidelines for the trial of rape cases, ensuring protection and a sense of confidence to the rape victims.
State of Maharashtra v. Prakash (1992)
Facts of the case
In this case, the victim had travelled to her village with her spouse to attend the Ganpati festival. The accused was a police constable who had gone to the village for the festival’s ‘bandobast,’ and the other was a local businessman. The businessman summoned the victim’s husband to his home, and then he summoned the victim as well. The victim’s husband was assaulted, and the policeman raped her, followed by the businessman. When the case was brought, the defendants claimed that the women showed no signs of resistance and hence could not be held accountable for forced intercourse.
Judgment of the Court
According to the Bombay High Court, the police policeman instilled fear in the woman and her husband, both of whom were poor labourers. Because the sexual encounter was neither for love nor for money, the only explanation is that she was coerced. As stated in subsection (3) of Section 375’s circumstances, consent can also be obtained by putting the life of another person in whom the victim had an interest in danger. It is also stated that the victim’s husband was assaulted. Both of them were found guilty of rape under Section 376.
Rape is one of the most heinous crimes committed on women all across the globe. It shakes the very soul of not just the victim, but the society as a whole. The past decade has seen an unprecedented increase in the number of rape cases across India, which raises an alarm for the need of deterrent laws now more than ever. We have come a long way to address this social evil and stand together in fighting it, but we still have a long way to go.
The many amendments attempted to bring about significant reforms in the country, but their implementation on the ground has been poor. Marital rape is another issue that our legislators continue to overlook, and unfortunately, none of these Amendment Acts have recognised it as a crime. As a result, we see that strict legislation is essential to safeguard women from outsiders as well as family members.
Another significant loophole to be noticed is that the crime of rape as defined under Section 375 is gender-specific, i.e., it does not address rape by a woman. Hence, even if a woman commits the crime of raping a man or a woman, she will not be convicted under Section 376. This issue needs to be addressed since, due to this lacuna, only males under the age of 16 can be protected under the provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO). Adult males stand unprotected by the law, and even though the instance of rape by a woman on a man seems a rare idea, there are victims of this crime who are not given protection under the law.
Frequently Asked Questions (FAQs)
- What offence is punished under Section 376 IPC?
Section 376 provides punishment for the heinous crime of rape, as defined under Section 375 of IPC.
- What is the punishment for rape as stated under Section 376 IPC?
The punishment for rape under Section 376 has now been brought up to minimum of 7 years, which may be extended to a minimum of 10 years in some cases, such as rape of a minor or rape by a public servant. The maximum limit of punishment is life imprisonment and even the death penalty in severe cases. The convict shall also be ordered to pay a fine.
- Is the offence of rape gender-neutral?
No, according to the language of Section 375 IPC, rape can only be committed by a man on a woman. A woman cannot be convicted for committing the crime of rape, and even if she is part of an incident of gang rape, she will be held liable for abetment to the crime, but not for the actual offence.
- How to file a complaint under Section 376 IPC?
If you or someone you know has been a victim of such a grave crime, it should be reported at the earliest to the nearest police station to lodge an FIR and proceed with the medical examination of the victim. The medical examination produces a lot of substantial evidence related to the crime, and hence the victim has more evidence to present in the court of law. The nature of the offence under Section 376 is cognizable, which means that a police officer may arrest the accused without a warrant, so you can be ensured that justice takes its course and a speedy trial takes place. However, it has also been stated by the Supreme Court that delay in lodging FIR in rape cases may be accepted if supported by proper reasoning.
- When is death penalty granted to a person who has been convicted of rape?
The Supreme Court has set the rule of “rarest of the rare” cases to be awarded death penalty in the case of Bachan Singh v. State of Punjab (1980). Hence, if the rape was committed brutally and is highly condemnable, the convict shall be granted the death penalty, as seen in the case of rape convicts of the Nirbhaya gang-rape case. The rapists committed rape in a gruesome manner and hence were punished with death sentence. Whether a convict will be punished with death is a matter which is decided on a case-to-case basis, depending on the facts of the particular case.
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