Issue relating to rape case

Rape is the act of physically forcing a woman t ohave sexual intercourse, an act of sexual
intercourse that is forced upon a woman against her will. “Statutory rape” is a sexual
intercourse with a girl under the age consent , which age varies in different states from ten to
eighteen years. Rape is not acrime against the person of a woman , it is a crime against the
entire society. It destrous the entire psychology of a woman and pushes her into deep
emotional crisis. It is only be her sheer will-power that she rehabilitates herself in the society
which , on coming to know of the rape, looks down upon her in derision and contempt. Rape
is, therefore, the most hated crime. It is a crime against the basic human rights.

In a rape case the following two essentials are require, (1)sexual intercourse by a man with a
woman. (1) The sexual intercourse must be under circumstances falling under this section.
The sexual intercourse must be with a woman. The term man is defined as a male human
being of any age. The term woman is defined as a female human being of age under this
section.

Under section 375 of Penal Code , a man is said to commit rape who except in the case
hereinafterexceptd, has sexual intercourse with a woman under circumstances falling under
any of the five following descriptions. First-against will, secondary – without her consent .
Thirdly –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 . Fifthly- with or without her consent,when is umder sixteen
years of age.

Exception –Sexual intercourse by a man with his own wife ,the wife not being under thirteen
years of age , is not rape.

To have sexual intercourse with a woman against her will is rape. The expression “against
her will”; menas that the act must have been done in spite of the opposition ot the woman .
Non resistance on the part of the woman does not amount to consent. It will all depend on the
facts and circumstances of each case . At the same time distinction between “will” and
consent also cannot be overlooked.

Union of Myanmar vs Lin Htain Oo (4) The acquittal sentence of the accused for section 366
and376 by court (Mandalay) was unlawful. So the appeal was submitted . According to the
witness, Ma Wah Wah denied to go with together by consensual. Even though the accused
took Ma Wah without agreement cannot be said he didn’t commited the offence.

Consent given by a woman of unsound mind is of no valid. She was being incapable of
giving consent ffrom defect of understanding, it was held to have committed rape. Consent
given by an intoxicated woman is of no valid. It is not necessary ofr the defense to prove that
secual intercourse was with the consent of the woman.Where the accused made false
promise of marriage to a girl and thus obtained her consent to sexual intercourse, and it was
found that she was a minor and her consent was not consent in law. The only conclusive
prove of evidence of a girl’s age may be the birth certificate but where such a document is not
available the court or the judge has to base its conclusions upon all the foots ans
circumstances disclosed on examining all the physical features of the person whose age is in
question, in conjuction with such testimony as may be available. Where there was a
controversy as to age of the victim and the birth certificate showed which was also consistent
with other evidence. The medical opinion based on ossification test cannot be relied upon in
the face of a more reliable evidence, such as the school admission certificate.

Pa Hta Sa vs Aye Naut (September 29,2009) Criminal Appeal No. 106. The age of the
child must be analysed according to the child law . The birth date in the school registration of
the child is priority.

Union of Myanmar Vs Mg Moe @Mg thein 1995.The girl cheated her age and so he think
that she was aged cannot be taken into account. If under age he committed offence.

The explanation says that penetration is sufficient to constitute rape. The only thing to be
ascertained is whether the private parts of the accused did enter into the person of the
women . It is not necessary to decide how far they entered ,. For the offence of rape to be
committed ,it is not necessary that there should be complete penetration.

In respect of burden of proof, in a case of rape , the burden always lie on the prosecution .
There is an initial presumption of innocence of the accused and the prosecution has to bring
the offence home to the accused by reliable evidence. The accused is entitled to the benefit of
every reasonable doubt. If the accused failed to prove this his conviction would be legal.

It is he duty of the prosecution if , according to the medical jurisprudence, medical

examination was capable of yielding conclusive result , to ensure that examination within a
period of time when conslusive results could be achieved . The accused is entitled to say that
if a medical examination of the vital or the material parts of his body had been conducted, he
would have been in the position to show that the condition of those parts negative the
possibility of his guilt.

There are number of reasons why opinion evidence by ordinary witness is not permitted.
One is that an opinion may be based on a bunch rather than actual knowledge or expertise
and would therefore be unreliable. In a criminal trial the ultimate issue of innocence or guilt
may turn on a complex technical issue such as DNA evidence , the interpretation of medical
evidence. The judge must have the detailed technical knowledge require to decide it is clear
that this is where the combination of expert evidence and the expert witness forms an
important part of many crimical and civil .

Mg Mg vs Socialist Republic of the Union of Myanmar 1976 P 40 , Merely the serm did
not find on Woman ‘cloth, the accused would not be said he did not committed rape.
Informed to the people as soon as she was raped is the vital fact of the case to prove the rape.\

The dying declaration of the deceased person is admissible in evidence on a charge of rape.
Where in a rape case, the victim committed suicide before the trial and was held that non-
availability of the victim was no ground for acquittal.
 In respect of punishments for rape. The Pyidaungsr Hluttaw was passed by the Penal Code
amendment law (law no-10) in 25.3.2019. According to section 376 of this law, (1) whoever
commits rape except the offences of rape contained in sub-sectopms (2) and

(3) shall be ounished with imprisonment for a term of twenty years or with imprisonment of
either description for a term which may extend to ten years , and shall also be liable to fine.

(2) Whoever commits rape against a woman who is his own wife and is not under twelve
years or with fine or with both.

(3) Whoever commits rape against a woman who is under twelve years of age shall be
punished with imprisonment for life , or with imprisonment for a term of twenty years.

Section 376 is non –bail able offence and warrant case. The accused person would be un jail
first and file the suit at Court. In an uncertain evidence, he would not fair. According to
medical evidence , the police’s procedure , a suit must be firmed . To be justice for both
parties, the new law should be enacted.