This article is written by Gautam Chaudhary, a law student at Chander Prabhu Jain College of Higher Studies and School of Law, GGSIPU. The present article talks about the penal punishment for the offence of rape provided under Section 376 of the Indian Penal Code.
This article has been published by Sneha Mahawar.
Rape is defined under Section 375 in Chapter XVI of the Indian Penal Code, 1860, which discusses offences affecting the human body under the heading of “sexual offences”. Further, the punishment for committing rape is defined under Section 376 of the IPC. Although the Code defines this heinous crime as one of the offences that affect the human body, such a barbarous crime is said to be a crime against the entire society since it shows the condition of law and order in the country. Rape inflicts the most painful physical and mental trauma on the victim, and also violates their fundamental right to have a dignified and free life, guaranteed under Article 21 of the Constitution of India, 1950. This is why the legislature has selected it to be directly triable by the highest criminal trial court, i.e., the court of sessions. India has witnessed some gruesome and tortuous sexual crimes against women, like the Nirbhaya gang rape case, the Hathras rape case, the Kathua rape case, the Shakti Mills case, and the Dr. Priyanka Reddy gang rape case, and because of these incidents, the Parliament has amended Section 376 of the Indian Penal Code, 1860, in order to stringently punish this atrocious act.
The present article elucidates the statutory punishment for the offence of rape provided under Section 376 of the Indian Penal Code, 1860, along with the relevant landmark judgments.
Rape under the Indian Penal Code, 1860
Rape is defined under Section 375 of the Indian Penal Code, 1860. The Section defines it as ‘an unnatural and forced sexual intercourse between a man and woman against her will and without her consent’ also providing various sexual acts to be termed as rape for the ambit of the criminal law, these are:
According to Section 375 of the Indian Penal Code, 1860, a man is said to have committed rape when:
- A man penetrates his penis, to any such extent, into a woman’s vagina, mouth, urethra or anus or when he makes her do the same act with him or any other person.
- A man inserts any object or any part of his body to any extent into a woman’s vagina, urethra, or anus or when he makes her do the same with him or any other person.
- A man manipulates any part of a woman’s body in order to cause penetration into the vagina, urethra, anus or any part of her body, or when he makes her do the same with him or any other person.
- A man applies his mouth to a woman’s vagina, anus or urethra or when he makes her do the same with him or with any other person.
The Section further provides for the instances under which the above-mentioned acts will be considered rape. The description of the situation is discussed thoroughly below.
According to the present Section, all the above-mentioned activities will be considered rape when the following circumstances fall under the following:
- When the above-stated acts are done against her will or without her consent.
- When a sexual act is done with her consent but her consent is obtained by putting her or any other person in whom she is interested in a fear of death or of hurt.
- When the above-said activities are done by a man, where he believes he is not her husband and where she grants consent to him bona fide believing he is her husband to whom she is lawfully married.
- When the above-stated acts are done with her consent but her consent was not voluntary because she was of unsound mind at the time of giving consent or was in an intoxicated state due to a stupefying and unwholesome substance administration by himself, and the intoxication was of such an extent that she was unable to understand the nature and consequences of the activity to which she has given consent.
- When the above-said activities are done to a minor i.e. below 18 years of age.
- When the above-said acts are when she is unable to communicate her consent.
Explanation 2 of the Section provides the definition of consent for the operation of Section 375 of the Code. According to the explanation, “consent” means an unambiguous voluntary agreement wherein women, by words, gestures, or any other form of verbal or non-verbal communication, communicate a willingness to participate in a certain sexual act.
Thus, as per the provisions mentioned above and provided by Section 375, it can be construed that the offence of rape consists of the following essential elements:
For the operation of Section 375 for penal punishment upon the accused, it is necessary that sexual intercourse take place, which is given under Parts 1 to 4, i.e., the penetration of the penis, the insertion of any object or body part, to any extent, into the vagina, mouth, urethra, or anus. Also, there should be manipulation of any part of a woman’s body to cause penetration and the application of his mouth to the vagina, anus, and urethra of a woman.
Against her will
Description 1 of Section 375 of the Penal Code provides that sexual intercourse done with a woman will be termed rape if it is done against her will. The term “an act against the will” in criminal law means an act is done to a woman despite her active or unambiguously expressed resistance or denial of its occurrence. The terms against her will and without her consent are often used interchangeably; however, the two terms are completely distinct from each other, as the former deals with denial while the act is occurring, while the latter refers to the agreement between the parties for a sexual act that is yet to take place.
Without her consent
When a sexual act is done to a woman without her consent, it will also be termed “rape” as per the penal code provisions. For proper comprehension of the term “without her consent,” it is essential to understand the meaning of the term “consent.” As per explanation 2 of the Section, “consent” means a voluntary agreement without any doubt between a man and a woman, where a woman, by words, gestures, or any other form of verbal or non-verbal communication, communicates or agrees to a certain sexual activity. As a result, if a woman does not give such consent, the act is classified as “rape” despite her denial.
In Uday v. State of Karnataka (2003), the Supreme Court gave the meaning of consent, terming it “three things-a physical power to act, a mental power of acting, and a free and serious use of them.”
A sexual act in fear of death or hurt
Further, according to description 3 of the Section, where the consent of a woman to a sexual act is taken by putting her or any other person in fear of death or hurt, the said consent has not been given in criminal law since it is the product of a fear that is exerted by a man on a woman or any person in whom she is interested. For the purposes of this Section, any other person can be her husband, child, or parents.
A person is said to be liable for rape if he impersonates the husband of the victim. According to the Section, a woman’s consent to a sexual act with the accused in such a case is invalid because the agreement to sexual intercourse is not between the accused and the victim, despite the consent being given to that person, whom she believes to be lawfully married to. The person under this Section would be held liable for rape if he falsely and deliberately impersonates her husband and, after doing so, intentionally performs sexual intercourse with her.
Unsound and intoxicated
Further, the Section provides another circumstance where the consent given by the woman will not be treated as valid consent and the act committed will be taken as rape. It provides that when a woman consents to an act, at the time consent is given, she is of unsound mind or is in an intoxicated state due to the administration of an intoxicant, and because of her unsoundness or intoxication, she is unable to understand the nature and consequence of the act for which she is giving her consent.
Consent of a minor
Sexual intercourse with a minor, according to description six, is rape. The Section makes it illegal to have sexual intercourse with a minor, whether she gave her consent at the time of the sexual act or not, because the consent has no value in such cases because the victim is a minor and has no knowledge of the act and its consequences.
Unavailability of consent communication
Rape occurs when a woman is unable to communicate her consent for a sexual act for any reason, but the act is performed despite her inability.
Punishment for rape under the Indian Penal Code, 1860
Section 376 of the Indian Penal Code, 1860, provides for the statutory punishment for the offence of rape. Sub-section 1 of the present Section provides that whoever commits the offence of rape shall be punished with rigorous imprisonment, which shall not be less than ten years and may extend to life imprisonment, and would be liable for a fine as well.
Further, subsection 2 frames out the punishment for rape for specific individuals who commit rape in certain circumstances with a woman. It provides:
- A person being a police officer will be punished for the offence of rape if he commits forceful sexual intercourse on a woman who is either in his custody or his subordinate’s custody, within the limits of the police station in which he is appointed or in any police station house premises.
- Sub-section 2(b) provides punishment for a public servant who commits rape on a woman who is in his custody or is in the custody of his subordinate custody.
- The member of the armed forces will be open to punishment if he commits rape in an area where he is deployed through the authorisation of either the Central Government or any state government. For the operation of this subsection armed forces are defined under explanation (a) which states that armed forces would mean naval, military and air forces and any other forces which are constituted under any law for the time being. Also, it would include paramilitary forces or any other forces under the control of the central government or any state government.
- Commission of rape on any inmate by a member of staff or management of custody places established under any law for the time being in force, such as jail, remand home, or women’s or children’s institution.
- Commission of rape on a woman in a hospital by a member of the hospital’s staff or management.
- Commission of rape on a woman by a guardian, relative, teacher, or any other person who is in a position of trust and authority towards her.
- Commission of rape on a woman during communal or sectarian violence.
- Commission of rape of a pregnant woman.
- Commission of rape of a woman who is incapable to communicate her consent.
- Commission of rape on a woman by exerting control or dominance over her.
- Commission of rape on a woman who is suffering from mental or physical disability.
- Commission of rape of a woman while causing grievous bodily harm or maiming or disfiguring or endangering her life.
- Commission of rape repeatedly on the same woman.
For all the above-stated instances provided under sub-section 2 of Section 376 of the Indian Penal Code, the punishment for the offender shall be imprisonment, which shall not be less than ten years. It may extend to life imprisonment with a fine.
Section 376 also includes a provision for punishment for rape on a woman under the age of sixteen. In this case, the statutory punishment would be rigorous imprisonment, which shall not be less than twenty years and may also extend to life imprisonment; he shall also be liable to pay a fine to the victim.
Major amendments in Section 376
The Criminal Law (Second Amendment) Act of 1983
Section 376 of the Indian Penal Code, 1860, was majorly amended for the first time in the year 1983. The aforementioned Amendment was the result or product of the surge caused by the infamous Mathura case, which caused a nationwide uproar in the country because the case attacked the core of Indian criminal law and system.
It was the case of Tuka Ram and Anr. v. State of Maharashtra, (1978), wherein the accused persons, i.e., two policemen, allegedly raped a teenage Adivasi girl while she was in their custody. The criminal trial of the gruesome crime was what sparked the sudden urge for change in our criminal law because the trial court acquitted the two accused persons after observing that the prosecutrix was habituated to sexual intercourse and the sexual act was done voluntarily on her part, and the prosecution has not proven the case to bring back the charge. In its appeal, the High Court overturned the trial court’s decision and convicted the accused based on the prosecutrix’s “passive submission,” reasoning that the victim’s consent was the result of fear and pressure exerted by the accused’s authority, making her feel helpless, and thus no consent was communicated in the eyes of the law. Thereafter, the accused reached the Supreme Court, where the High Court’s decision was reversed, thereby acquitting the accused of the charges, with the explanation that there were no marks found on the body of the prosecutrix and that she did not raise any alarm or any kind of objection towards it.
The Supreme Court’s verdict left the court’s observation open to widespread protests and criticisms by various feminist groups and the public, where all the people and various law professors questioned the true meaning of the term “consent.”
Due to all the unrest in the country and protests in 1983, an amendment was introduced in the legal reforms with the passing of the Criminal Law (Second Amendment) Act, 1983. The Act brought various new penal provisions, and Sections 376-B, 376-C, and 376-D were inserted in order to deal with custodial rape. This particular Amendment also inserted Section 114A in the Indian Evidence Act, 1872, which provides for the presumption that the court holds in support of the victim that no consent was given for the sexual activity when she denies the same. In such cases, according to the Section, the onus lies upon the accused to rebut this presumption in order to obtain an acquittal. The Amendment further introduced Section 228A in the IPC, which stated the prohibition on the disclosure of the victim’s identity.
Nirbhaya case and Criminal Law Amendment Act, 2013
In 2012, the country saw the most torturous crime that anyone could commit against a human being. Nirbhaya, a young woman was gang-raped in the country’s capital in such a barbarous manner that anyone could ever imagine. She was brutally gang raped by six men on a bus in Delhi, where, after the sexual act, her internal organs and private parts were mutilated to such an extent that her internal organs were pulled and her private parts were mutilated in a very inhuman manner that caused grave injuries that eventually took her life.
The four defendants were convicted of rape, kidnapping, murder, and destruction of evidence in September 2013 and sentenced to the death penalty, which was upheld by the Supreme Court in 2017 by stating that the case clearly came within the category of “rarest of rare cases.”
Justice Verma Committee Report
After the horrific case of human mutilation, the public took to the streets, showcasing massive outrage towards the then-present criminal law provisions. In response to the same, the government set up Justice J.S. Verma’s committee to suggest amendments to reform the penal provisions. The committee made recommendations on all kinds of sexual crimes.
With respect to the punishments for rape, the Committee was of the view that such offences need to be graded. The Committee was of the opinion that, while rape is a deterrent act for the victim’s soul, it does destroy a woman’s moral structure. However, the death penalty in such cases is not fit to be called for.
The Criminal Law Amendment Act, 2013
As per the suggestions edified by the Justice J.S. Verma Committee, the Criminal Law Amendment Act, 2013, came into existence on the 3rd of February, 2013. It introduced a wide range of subsequent changes in the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1872.
Along with various statutes and provisions, the scope of Section 376, i.e., punishment for rape, witnessed some essential changes. The current amendment introduced a new sub-section of sub-section (2) that now provides punishment for rape committed by a member of the armed forces deployed in an area by the Central or a State Government in such an area.
Further, Section 376A was also inserted in the Section, providing rigorous imprisonment for an accused of not less than twenty years, which may extend to life imprisonment or even death if the act of rape committed by him leads to the death or vegetative state of the victim.
Subsequent to all the above-stated Sections, Section 376 B, Section 376 C, Section 376 D, and Section 376 E were also inserted in the Indian Penal Code, providing various new sexual offences relating to sexual intercourse by a husband with his wife during separation, rape by a person who is in authority, gangrape, and punishment for repeat offenders.
Kathua rape case and the Criminal Law (Amendment) Act, 2018
In 2018, the nation once again sparked outrage against the country’s criminal laws when an eight-year-old girl was gang raped by six accused persons for a week before being killed. Reforms were made after this alleged incident with a minor girl. The Criminal Law (Amendment) Act of 2018 introduced harsher and stricter penal punishment for rape for those individuals who target minor girls who are between the ages of 12 and 16. The Act introduced rigorous imprisonment of not less than twenty years with a fine that may extend to life or death in the case of rape committed on a minor girl below the age of 12, and gang rape will be punishable with life imprisonment with a fine that may extend to death.
In case the victim is below the age of 16 years then the punishment for the committed sexual offence shall be imprisonment for 20 years which may extend to life imprisonment.
Rape and capital punishment in India
Capital punishment, or the death sentence, is the last punishment a court imposes on any accused person to deliver justice in society. Capital punishment means taking a person’s life judicially or through a judicial order. Regarding the concept of capital punishment in the penal law of the country, there is a constant debate among moralists, human rights activists, and the judiciary on whether such a punishment should be implemented or not and when it should be exercised.
The constitutional validity of capital punishment came before the Supreme Court’s constitutional bench in the case of Bachan Singh v. the State of Punjab (1980). The case emerged as a vital issue to put for adjudication before the highest court because of the conflicting judgments in regard to it. In Jagmohan v. the State of Uttar Pradesh (1973), it was observed that the imposition of the death penalty is constitutionally valid, whereas the case of Rajendra Prasad v. the State of Uttar Pradesh (1979) gave entirely opposite and conflicting views. In the Rajendra Prasad case, Justices Krishna Iyer and D.D. Desai ruled that when the trial court concludes a case convicting the accused, it is the duty of the court to ask the prosecution whether the highest punishment is required or not. And if the prosecution calls for such a penalty, then it should state or provide the crucial circumstances on whose basis the punishment is required. Thus, in this particular case, the Bench provided the essential element of special reasons and circumstances to be looked at for imposition.
The idea of “hanging the rapists” is widely condemned by the general public. After the most horrific cases like the Nirbhaya case, and the Kathua rape case, inter alia, people in society are generally filled with rage and come down to the streets to get justice for the victim and their families. The concept of capital punishment for rape is always demanded by the public. However, this is not the case with the judiciary, as the courts of law do not follow the emotions and rage of society, but rather the well-established law in India regarding capital punishment.
To impose capital punishment on a convicted rapist, it is essential for the court to ascertain and find through its keen skill of adjudication whether the case falls in the category of “the rarest of the rare.” This principle mainly applies to cases where the action is of such a barbaric and inhumane nature, like in the Nirbhaya rape case, which only resorts to doing justice through the judicial hanging of the accused. In Bachan Singh v. State of Punjab (1980), the Supreme Court required capital punishment to be done only in the “rarest of the rare,” where the crime committed by its very nature forecloses the scope of life imprisonment and only leads to death punishment.
Further, the court of law, while dealing with rape cases, cautiously observes the effect of the accused person on the victim. These effects would refer to the death or mental trauma of the prosecutrix as a consequence of the forceful sexual intercourse. The court imposes a death sentence in cases where the victim’s private parts or herself are ravished to such an extent that it leads to her death. Therefore, in order to impose capital punishment in India for the offence of rape, it is essential for the case to show through its facts and circumstances that it falls under the “rarest of the rare” category, but what constitutes this rarity is a matter of the facts and circumstances of the case.
Judiciary and rape punishment
In Indian democracy, one of its pillars, i.e., the judiciary, keeps a check on the law and order of the nation. It acts as an authority over all the matters that affect the public at large. Rape is one of the biggest social evils that affect society since it scares and spreads horror among the common public about how women in society will be safe from such a heinous offence.
The courts in India have since time immemorial acted, adjudicated, and punished the offenders who commit the barbaric offence of rape in the intoxication of their animal lust. However, it is to be noted that in the Indian Penal Code of 1860, the punishment for rape provided under Section 376 is a minimum of ten years of rigorous imprisonment with a fine that also may extend to life imprisonment and, in the case where the woman is below the age of 16, a minimum of 20 years.
From a plain reading of the Section, it cannot be said that the Code provides for the death penalty for the offence of rape since it only talks about imprisonment. But, in certain cases dealing with the rape of a woman, the Supreme Court has punished the offender with the death penalty. What the court follows is the doctrine of “the rarest of rare cases.”
The case of Machhi Singh v. State of Punjab (1983) provides for a number of elements that are to be looked at for imposing death punishment on the accused. According to the 3-Judge Bench, the offence committed must be of the most heinous nature that anyone could ever imagine in order for the highest punishment to be applied. It further provides the following factors.
- The manner of the commission of the offence;
- The motive for the commission of the offence;
- The impact of the offence on the whole society;
- Facts and circumstances leading to the offence;
- The vulnerability of members of society at the hands of the offender;
- The magnitude of the crime;
- The personality of the victim of the offence.
Landmark judgements on the punishment of rape
Mukesh & Anr v. State for NCT of Delhi & Ors, (2017) (Nirbhaya case)
In this case, a paramedical student was tortured and raped by a group of six men, who inserted an iron rod into her vagina and her intestines, abdomen, and genitals. Due to this, her private parts were completely destroyed. For the crime committed, one of the accused, who was a juvenile, was sent to a reform facility for three years. One of the accused committed suicide in jail, and the rest were given the death penalty. During the hearing, the Supreme Court stated that punishment or sentencing in these cases is a matter of discretion that must be exercised while weighing the circumstances that are aggravating or mitigating. Aside from that, what must be seen is the protection of society as a whole, balancing the concepts and spirit of the criminal’s rights and the rights of society as a whole.
Rameshbhai Chandubhai Rathod v. State of Gujarat (2011)
In this case, the victim was raped and murdered by the accused. The Supreme Court ruled that imposing a sentence on the accused without considering its impact on the social structure of society is potentially ineffective. The court, while dealing with sentencing, has at times applied the “crime test” or “rarest of the rare test” to ascertain whether the crime committed has shaken the conscience of the common people and if it has elicited an extreme rage in the public in relation to its criticism. Courts have also ruled that when the prosecutors are helpless women, children, or elderly people and the accused exhibits a savage animal mentality, committing the crime in a tortious manner, there is no mercy and the death penalty should be imposed.
Dhananjay Chatterjee alias Dhana v. State of West Bengal (1994)
In this case, the accused, who was a security guard by profession, raped and murdered a minor schoolgirl in retaliation for his transfer because of the victim’s complaint. The Supreme Court of India, in its verdict, imposed a death sentence on the accused person while observing that the measure or rule of punishment in a criminal trial must depend on the atrocities and inhuman acts done by the accused person on the victim, along with his conduct and the victim’s helplessness.
Bantu v. State of Uttar Pradesh (2008)
In this case, the victim, a five-year-old girl, was raped and murdered in the most horrific manner by the accused person, who committed sexual intercourse with her and then inserted a wooden stick in order to kill her with the motive to prevent her from informing anyone afterwards. The Supreme Court found the accused guilty and awarded capital punishment, observing that, on the issue of imposition of appropriate punishment, the court must try to balance social order and criminal deterrence in a society where it has to impose the highest penal punishment. It further stated that at every step in a criminal trial, the present mitigating and aggravating factors must be keenly judged.
From the nineteenth century to the present, Indian penal law has undergone numerous critical and changing reforms through amendments that shaped criminal law in accordance with changing societal notions. Although rape laws are in place to deliver justice, they lack strict authority. An offence like rape must be dealt with with an iron hand because it does not only destroy the person of the victim; it thrashes and mitigates the very soul as well. Stricter punishment, like rigorous life imprisonment, must be the only punishment given to the accused person since the scope of capital punishment is very limited in India due to the “rarest of rare” principle. Above all, what has to be looked at by the judiciary is the implementation of punishment by examining the aggravating and mitigating factors, or whether the committed offence calls for a stricter punishment or not.
- P.S.A Pillai’s Criminal Law, 14th Edition LexisNexis, 2019
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