In this article, Kanti, a student of the University of Delhi, talks about the judicial stand taken on the issue of rape and gang rape and how is the punishment decided for the same.
Should the offenders of heinous crimes like rape and gang rape be given the capital punishment or not is a widely debated issue.
Developing countries like India do not have a deterrent punishment for such heinous crimes.
Additional sessions judge Kamini Lau had on May 11, 2011, suggested “chemical castration” as an alternative to a jail term for rapists.
Is there any difference between laws relating to Rape and Gang Rape?
The offence of rape and gang rape are punishable under the Indian Penal Code and separate punishment has been provided for them. A gang rape is committed by more than one person on a woman while a rape is committed by one man. The punishment provided for the offences are as follows:
Section 376 of the IPC states that if the rape is committed by persons listed below, they shall be punished with rigorous punishment of not less than 10 years, but can extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.
- Police officer within the limits of the police station.
- A police officer in the premises of any station house.
- A police officer on a woman in the police officer’s custody.
- Public servant on a woman’s in his custody.
- Member of the armed forces.
- Any person in the management of the jail, remand home etc. on inmate of such place.
- Staff/management of the of a hospital on a woman in that hospital.
- By a person who is in a position trust or authority or control or dominance towards a woman on such woman.
- During communal or sectarian violence.
- On a pregnant woman
- On a woman less than 16 yrs of age
- On a woman incapable of giving consent
- On a mentally or physically disabled woman
- Who causes grievous bodily harms or endangers the life of a woman.
- Who commits rape repeatedly on the same woman.
If any other person commits rape on any woman, he shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.
Section 376A says if a person commits an offence which is punishable under section 376 which causes the death of the women or causes the women to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than 20 years, but may extend to imprisonment for life or with death.
Section 376D prescribes punishment for gang rape and says where a woman is raped by a group of persons, then they shall be punishable with rigorous punishment of not less than 20 years, but may extend to life imprisonment, and with fine.
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this section shall be paid to the victim.
Let’s have a look at how far the judiciary has gone to interpret the various legislation related to rape and laid down landmark judgments where no law was prescribed.
Judicial stand on rape prior to 2000
Judiciary has played an important role in protecting the rights of the women and have tried to interpret laws in consonance with international treaties and Conventions.
Till 2002, the judiciary was not so proactive in convicting the rapists and the sexual history of the women was the primary factor considered while the verdict was given. The same was reflected when the Hon’ble Supreme Court acquitted the accused based upon the sexual history of the victim in the Mathura Case. The court presumed that the victim gave her consent because she was habitual of the sexual intercourse and the vagina of the admit could admit two-fingers very easily.
But due to widespread protests and open letter to the Supreme Court by some intellectuals, led to an amendment in the Criminal Act. This amendment said that if a victim says that she did not give the consent, then the Court shall assume the same.
How is the quantum of punishment is decided in rape cases?
- For Rape Cases
- For Gang Rape Cases
Capital Punishment in Rape Cases:
Rameshbhai Chandubhai Rathod vs State Of Gujarat
In the instant case, the victim who had not seen even ten summers in her life is the victim of sexual assault and animal lust of the accused appellant. She was not only raped but was murdered by the accused appellant.
Imposition of the sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.
The plea that in a case of circumstantial evidence death should not be awarded is without any logic. If the circumstantial evidence is found to be of an unimpeachable character in establishing the guilt of the accused, that forms the foundation for conviction. That has nothing to do with the question of sentence as has been observed by this Court in various cases while awarding death sentence. The mitigating circumstances and the aggravating circumstances have to be balanced.The plea of learned counsel for the appellant that the conviction is based on circumstantial evidence and, therefore, the death sentence should not be awarded is clearly unsustainable.
The case at hand falls in the rarest of rare category. The circumstances highlighted establish the depraved acts of the accused and they call for only one sentence i.e. death sentence.
As dealing with sentencing, courts have thus applied the “Crime Test”, “Criminal Test” and the “Rarest of the Rare Test”, the tests examine whether the society abhors such crimes and whether such crimes shock the conscience of the society and attract intense and extreme indignation of the community. Courts have further held that where the victims are helpless women, children or old persons and the accused displayed depraved mentality, committing crime in a diabolic manner, the accused should be shown no remorse and death penalty should be awarded.
Dhananjay Chatterjee Alias Dhana vs State Of West Bengal 
A security guard raped and murdered a school girl in Kolkata in 1990 in retaliation for his transfer on her complaint made earlier. The apex court while awarding the death sentence to the accused observed that the state in which the body of the deceased was found, it is obvious that a most heinous, cold blooded, inhuman type of barbaric rape and murder was committed on a helpless girl.
In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals.
“Justice demands that courts should impose punishment fitting to the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering the imposition of appropriate punishment.”
Bantu vs State of Uttar Pradesh 
The victim aged about five years was not only raped but was murdered in a diabolic manner. The Court awarded extreme punishment of death, holding that for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed must be delicately balanced by the Court in a dispassionate manner.
Life imprisonment in Rape Cases:
State vs Deepak Dogra,2013 
The boy established the sexual relations with the victim on the false pretext that he will marry her later. He performed an invalid marriage when the girl complained of him to the police when he refused to marry her and she was pregnant with his child.
In the present case, the act of the convict is most deplorable, both legally and morally. It is time for the realization that certain category of sexually depraved behaviour is totally unacceptable in the Indian Socio- Legal System which seeks to protect the chastity the first virtue of a woman and such behaviour can prove to be costly as has happened in the present case.
Keeping in view the ghastly and inhuman act of the convict, a substantive and stern sentence is required to be imposed upon the convict so that it is not only in commensuration with the gravity of the crime but also serves as an example for the others who might also venture on the same forbidden path. The convict does not deserve any leniency.
The Court can not and should not give such a licence to those who keep on looking for opportunities to exploit the sentiments and vulnerability of Indian girls who perceive marriage as a pious bonding and not as a union of two bodies. Allowing such persons to go scott free after exploiting poor and helpless girls in this manner could not have been the intention of the legislature which considered rape to be such heinous as to attract imprisonment up to life.
In view of the above discussion, the conviction imposed on the appellant herein is confirmed. However, the sentence of life imprisonment is modified to RI for 10 years with a fine of Rs 1000, in default, to further undergo RI for one month.
Punishment for more than 10 years but less than life imprisonment in Rape Cases:
Santosh vs State Of Uttar Pradesh
The accused committed rape on a girl belonging to scheduled caste. The accused was awarded life imprisonment. An appeal was filed for the same in the apex court. The accused was 25 years of age at the time of the incident and the only bread earner of the family. It was his first guilt and hailed from a very poor family.
The apex court considered all the above factors and reduced the sentence to 12 years. The court said that in such case the appropriate sentence cannot be more than 12 years.
Punishment for less than 10 years in rape Cases:
The State Of Punjab vs Gurmit Singh & Ors
A 10th class student was abducted and raped by four young men aged 21-24 years. The accused were acquitted by the trial court and appeal was filed against the same. The apex court while reversing the judgment said that as far as the sentence is concerned, athe court has to strike a balance. In this case, the occurrence took place more than 11 years ago. The respondents were aged between 21-24 years of age 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, more than a decade ago. All the respondents, as well as the prosecutrix, must have 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.
In this case, we have, while convicting the respondents, imposed, for reasons already set out above, the sentence of 5 years R.I. with fine of Rs. 5000/- and in default of payment of fine further R.I. for one year on each of the respondents for the offence under Section 376 IPC. Therefore, we do not, in the instant case, for those very reasons, consider it desirable to award any compensation, in addition to the fine already imposed, particularly as no scheme also appears to have been drawn up as yet.
State Of Maharashtra vs Chandraprakash Kewal Chand Jain
A girl who was newly married was raped by one policeman twice while his husband was kept separate from her. He not only raped her but also threatened her that if she opens her mouth, then he will burn her and her husband alive. Trial court-sentenced the respondent to suffer rigorous imprisonment for 5 years and to pay a fine of Rs.1,000, in default to suffer rigorous imprisonment for 6 months.
On the question of sentence we can only say that when a person in uniform commits such a serious crime of rape on a young girl in her late teens, there is no room for sympathy or pity. The punishment must in such cases be exemplary. We, therefore, do not think we would be justified in reducing the sentence awarded by the trial court which is not harsh.
Om Prakash vs State of Uttar Pradesh
The victim was in court because her husband was facing challan proceedings. She was 6 months pregnant. The accused came to attend the same and tried to rape her when he found her alone in the Zila Parishad. Although no evidence of rape was found, the accused was given a seven years sentence only on the basis of the statement of the victim and eyewitnesses.
The trial court had awarded 10 years punishment to the accused considering that there was “full possibility” that the accused was aware of her pregnancy. But the apex court reduced the punishment to 7 years because no evidence was brought to the court that the accused actually had the knowledge about her pregnancy.
GANG RAPE CASES
Capital Punishment in cases of Gang Rape
Shakti Mills Rape Case
A 22-year old photojournalist was brutally raped by 5 men including a minor when she was clicking pictures of a worn out mill called Shakti Mills in Mumbai. Awarding death penalty to the three, the court said,
If this is not the case where death sentence prescribed by law is not valid, which is?” the judge asked.
I am constrained to hold that the mitigating circumstances like young age of accused, their socio-economic conditions and non-existing chances of their reformation, pale into insignificance in the light of the aggravating circumstances. Hence this case, without any doubts, falls into the category of the “rarest of rare.” Therefore, if the object of punishment is to be achieved, then here in the case, only maximum punishment will send the message to the society and also to similar like minded persons. To show leniency or mercy in the case of such heinous crime and on the accused who have shown no repentance or remorse after exhibiting extreme depraved mentality would be a travesty of justice. This Court cannot do so.
The Nirbhaya Case (2012)
This case hardly requires any facts to be stated as it is still fresh in the consciousness of the nation. A paramedical student was tortured by six men to such an extent that an iron rod was shoved into her vagina and her intestines, abdomen, and genitals were damaged severely. They threw her out of the bus in the wintery night.
One of the accused was juvenile and was sent to a reform facility for three years. One of the accused committed suicide in the jail and rest were given the death penalty.
The court observed that “Question of awarding sentence is a matter of discretion and has to be exercised on consideration of circumstances aggravating or mitigating in the individual cases… protection of society and deterring the criminal is the avowed object of law…while determining sentence in heinous crimes, Judges ought to weigh its impact on the society and impose adequate sentence considering the collective conscience or society’s cry for justice. While considering the imposition of appropriate punishment, courts should not only keep in view the rights of the criminal but also the rights of the victim and the society at large.”
Life imprisonment in Gang Rape Cases:
Mohan Lal & Anr vs State Of Punjab
A student was forcibly raped by her teachers including the Director of Education of Punjab state. The trial court imposed 10 years of imprisonment on the accused and fine of Rs.2000/- and Rs. 3,000/- respectively, and in default of payment of fine, to undergo further rigorous imprisonment for one year and six months respectively. But an appeal was filed by the accused. The Supreme Court while agreeing with the trial court stated that so far as the conviction is concerned, as it was a case of gang rape by teachers of their student, the punishment of 10 years rigorous imprisonment imposed by the trial court is shocking, considering the relationship between the parties. It was a fit case where life imprisonment could have been awarded to all the accused persons.
Punishment for less than 20 years in Gang Rape Cases:
Baldev Singh & Ors vs State Of Punjab
The prosecutrix was gang raped and beaten by the accused when she was going to her house. All the three appellants were convicted and sentenced to 10 years rigorous imprisonment. The High Court upheld the sentence. The appellants had already gone for 2 years imprisonment. The accused and prosecutrix and the appellant are married( (not to each other) and the prosecutrix has two children also. The incident is now 14 years old and it was stated before the court that both the parties have entered into a compromise. Therefore, the accused should be acquitted. The apex took all the above listed factors into consideration and reduced the sentence of the accused to that much which the accused had already undergone.
In this case, the sentence awarded by the court was less than the punishment prescribed in the statute.
Shimbhu & Anr v. State Of Haryana
The victim in this present case was gang raped by the accused. The Additional Sessions Judge convicted the accused and awarded them 10 years rigorous imprisonment. The High Court upholded the same. The accused filed an appeal and the learned counsel on behalf of the appellant contended that the accused should be awarded lesser punishment as there has been a compromise between the parties.
But the court rejected these contentions and held that rape is a non-compoundable offence and cannot be considered a leading factor in reducing the punishment. Because there might be a possibility that the victim has been pressurized for the compromise.
By the Criminal Law Amendment, 2013, the proviso which said that in exceptional circumstances, the punishment may be reduced, has been deleted in the wake of the rising of crimes against women. Though this deletion does not affect the discretionary powers given to the judiciary.
The court has warned the subordinate courts and the High courts again and again in the words:
This is yet another opportunity to inform the subordinate Courts and the High Courts that despite stringent provisions for rape under Section 376 IPC, many Courts in the past have taken a softer view while awarding sentence for such a heinous crime. This Court has in the past noticed that few subordinate and High Courts have reduced the sentence of the accused to the period already undergone to suffice as the punishment, by taking aid of the proviso to Section 376(2) IPC. The above trend exhibits stark insensitivity to the need for proportionate punishments to be imposed in such cases.
Acquittal of the accused due to lack of evidence:
Mahmood Farooqui vs State (Govt Of NCT Of Delhi)
The victim alleged that she was forcefully gang raped by the accused in the veranda of a community hall. But no semen was found on the clothes of any of the accused. The community hall where the rape has been alleged to be committed is a crowded place and also the time when rape is alleged to be committed was during Ganpati festival.
The court disbelieved the story of the prosecution because in the circumstances as stated by the prosecutrix, it was difficult to believe that the appellant accused could have been successful in committing upon the victim girl one after the other. The accused appellant were acquitted under section 376 but convicted under section 511 of the IPC.
Can A Woman Be Charged For Gang Rape?
The rationale given by the High court in Priya Patel vs State of M.P. was that though a woman could not commit rape but if a woman facilitated the act of rape, she could be prosecuted for gang rape. The High Court was of the view that though a woman may not commit rape, but if a woman facilitates the act of rape, Explanation-I to Section 376(2) comes into operation and she may be prosecuted for gang rape. The rule is based on the principle of common intention as provided in section 34 of the IPC.
The apex court in the same case in appeal held that, after a reading of Section 375 of the IPC, rape may be committed only by man. The explanation to Section 376 (2) merely indicates that when one or more persons act in furtherance of their common intention to rape a woman, each person of the group must be deemed to have committed gang rape. The person included both men and women.
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(2011) 2 SCC 764
(1994) 2 SCC 220
(2008) 11 SCC 113
1996 SCC (2) 45, JT 1995 (9) 530
1996 AIR 1393, 1996 SCC (2) 384
1990 AIR 658, 1990 SCR (1) 115
(crl.) 629 of 2006
(2011) 13 SCC 705
(2014) 13 SCC 318
AIR 2006 SC 2639