Sexual Offences Under Indian Penal Code

Introduction :

 The category sexual offences are dealt with in IPC in section 375 to 377. What is rape?
What is not rape ? This topic focuses on the content of what is the essential requirement
to constitute rape with reference to relevant sections of IPC. Further, the article discusses
in detail the cases that lead to amendments to the rape laws.
 The consent aspect is explained with reference to the presumption of absence of consent
which was a result of criminal amendment 2013.
 This topic tells what are the exceptions which cannot be called rape. Punishments for the
same provided in IPC is mentioned in brief. Apart from the general ones, the specific
focus was on the topics of gang rape, minor rape. In the end, the victim identity and
assistance have been mentioned in brief.

I. Sexual Offences Under IPC

 The category sexual offences are dealt with in IPC in section 375 to 377. Section 375
explains what is rape and provides punishment for the same. Rape is generally originated
from the Latin term “rapio” meaning “to seize”.
 So, in the literal sense, it is meant to be a forceful seizure. It means “the ravishment of a
woman against her will or without her consent or with her consent obtained by force, fear
or fraud or the carnal knowledge of a woman by force against her will”.
 But in the section, it defines as to what acts of a man amounts to rape and circumstances
under which the forceful ravishment is considered as rape. The punishment given in the
section has undergone many changes due to amendments made after the incidents of
custodial rape .
 Tukaram v. State of Maharashtra (AIR 1979 SC 185) and gang rape Mukesh & Anrs
v. State (NCT of Delhi) & Ors, ((2017) 6 SCC 1) which horrified the general masses.
Further, the rape incidents of minors have also called for severe punishments and changes
in the relevant rape laws.
AMENDMENTS MADE TO RAPE LAWS: SERIES OF INCIDENTS LEAD TO THESE
CHANGES

 In the first case, i.e., “Custodial Rape” case also known as “Mathura Rape” case, a girl
named Mathura who was an orphan along with her brother came to the police station to
give statement for recording was asked to stay back in the lock-up alone. Later on, was
raped by one officer in the police station while the other could not rape due to
intoxication and had committed sexual molestation. The trial court initially acquitted the
accused as they stated that the victim gave her consent for the incident to take place. The
Bombay high court ruled out the trial court judgement and held the accused convict for
rape and the other one for molesting.
 The high court reasoned that the girl never consented as there is difference between
“passive submission” and “consent”, here the girl was subject to fear which made her
submit her body but did not consent with free will. But the supreme court was of narrow
opinion about the same and held that the victim was not subject to fear as her relatives
were waiting outside the station which shows that she was not passively submissive and
labelled it as “tissue of lies”. Thus, it acquitted both.
 Aggrieved by the above judgement there were amendments made to nullify the supreme
court judgement. As a result the changes were made to IPC and section 376A to 376D
added to it and section 114A was added to the Indian Evidence Act.
 In the latter case, i.e., Gang Rape case, a young woman was gang-raped in Delhi in a
private moving bus. The victim was brutally raped, and unnatural offences were
committed on her which shook the public and enraged the general masses.
 There was a committee formed by Late Justice JS Verma, to make relevant amendments
to ensure harsh punishments and speedy justice. Many recommendations made by the
report of this committee took a legislative form in the 2013 amendment act.
 Further, the sections 376AB, 376DA, 376DB were inserted in the Penal code of India, for
providing harsh punishments to criminals who rape a minor, this was an impact of
increasing cases of minor’s rape.
II. RAPE:

The section dealing with rape is section 375 and the punishment for the same is given in section
376 along with other sections under the head of “Sexual Offences” in Indian Penal Code.

“Sec.375 Rape – A man is said to commit “rape” if he –

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

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

c. manipulates any part of the body of a woman so as to cause penetration into the vagina,

d. urethra, anus or any part of body of such woman or makes her to do so with him or any
other person or

e. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him
or

any other person, under the circumstances falling under any of the following 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 or 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 the 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 1—For the purposes of this section, “vagina” shall also include labia majora.
Explanation 2—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:

Provided that 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

Exception 1—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”

ESSENTIAL INGREDIENTS :

The essentials of this offence are as follows-

1. There must be “sexual intercourse” in the manner specified in section 375 from (a) to (d)
and under given circumstances, “by man upon a woman.”

2. It must be “against her will.”

3. “Without her consent.”

4. “Consent obtained by the fear of death or hurt.”

5. “Consent is given under misconception, that a man to be her husband who has the
knowledge that he is not her husband.”

6. “Consent is given in a state of unsoundness of mind or intoxication or under

circumstances when she is unable to understand the nature and consequences of her consent.”

7. “When the woman is under eighteen years of age – with or without consent.”

8. “When she is unable to communicate consent.”

The above are the essentials of the offence under section 375.
SEXUAL INTERCOURSE: WHAT AMOUNTS TO RAPE ?

Here, the sexual offence includes not only penile-vaginal penetration and along with it there are
other kinds which are :

 “Firstly, penile-urethra, penile-oral, or penile-anal penetration.

 Secondly, object-vaginal, object-urethra, or object-anal insertion.
 Thirdly, insertion of any body part other than penis into the vagina, urethra or the anus of
a woman.
 Fourthly, manipulation of any part of the body of a woman causing vaginal, urethral or
 anal penetration.
 Fifthly, application of mouth by a man to the vagina, urethra or anus of a woman or
making her do so with him or any other person” – are all included as sexual intercourse
and amounts to rape.
 Further, the section says that penetration of the penis into the vagina or urethra or anus of
a woman or making her do so with any other person can be “to any extent”.
 This phrase has made the term penetration to be interpreted as wider ones, including even
slightly or partially. Hence the penetration is not required to be in-depth and is
immaterial.
 Here, the physical injuries to the private part of the woman are not essential nor are the
rapture of the hymen, the mere fact of penetration is enough to hold a person guilty.
 The same is with the insertion of an object. It is to be proved that there is mere insertion
and depth is not required to be proved as it says “to any extent” to hold that rape has been
committed.
 In the case of rape, ejaculation is not necessary, and only penetration needs to be proved.
If ejaculation is proved, but with no penetration, then the case is not considered to be rape
but an attempt to commit rape. Thus, penetration is to be proved to hold a person for
commission of rape.
III. CIRCUMSTANCES: NON-CONSENSUAL SEXUAL INTERCOURSE SCENARIOS:
VARIOUS SITUATIONS COVERED UNDER SECTION 375:

 If we focus on the circumstances given in the section, it initially covers the non-
consensual circumstances where there is no will and/or consent of the victim.
 Further, it deals with consensual circumstances where it was due to fear or mistake of
fact. Furthermore, the circumstances where the woman is not able to make rational
decisions either due to intoxication/unsoundness, or due to being a minor are included.
 Finally, it deals with circumstances where the woman cannot communicate consent at all
– making it non-consensual sexual intercourse. Thus, the lawmakers have tried to cover
all the particular issues and circumstances within the ambit of the term “rape”.

AGAINST HER WILL

 Initially, the section covers the circumstances where there is non-consensual sexual
intercourse either due to no will or due to no consent. Both the situation – “against her
will” and “without consent” seem to be synonymous. But there is a slight difference
between the circumstances.
 If a victim is subject to rape against her will, it is sure that there is no consent, but the act
is done despite resistance and opposition by the victim.
 In case the rape is committed against a victim without her consent, then it is not
necessarily against her will but is an act done even though it is opposed by or resisted.
That is, the victim actively tries to oppose the act of rape being committed against her,
which is not present when an act is done against her will.

WITHOUT CONSENT

 As we talk about consent, the section requires there to consent, i.e., voluntary and
consciously acceptance which is different from passive submission.
 So, if a person said to have consent, it must be proved through gestures done or non-
verbal or verbal communication made. Mere submission without any resistance does not
amount to consent.
 Resistance is immaterial if the victim has not voluntarily participated. It will become a
weighing factor when there are explicit acceptance and voluntary participation in the
 sexual act. It can help the accused to get away with rape charges provided consent is
given prior to penetration.
 Further consent obtained through fraud or consent was given due to misconception or
unsoundness of mind or intoxication are also not valid consent and are held in detail
subsequently.
 Apart from the above, there is a “presumption of absence of consent” in case of rape as
per the evidence act in India.
 Hence when it is proved that the act of sexual intercourse has been done, then the victim
saying she has not consented will remain the presumption without any need for proving
the statement regarding consent. If the presumption is rebutted by the defence side, then
the accused may not be guilty of rape.
 If a woman is said to be unchaste or easy to virtue, even then it is not right to force her
for sexual intercourse. The moment she has opposed the sexual act it is an act of rape.

Case of State of Maharashtra v. Madhukar Narayan Mardikar:

 “Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as
and when he likes. So also it is not open to any and every person to violate her person as
and when he wishes.
 She is entitled to protect her person if there is an attempt to violate it against her wish.
She is equally entitled to the protection of law. Therefore, merely because she is a woman
of easy virtue, her evidence cannot be thrown overboard”.
 So even though a woman is said to have sexual intercourse earlier that does not mean she
is not a victim of rape.
 Lose of her virginity does not mean the accused of rape is free of any guilt. Even if a
woman is of no good character, her consent does matter and if she does not consent to
any sexual intercourse then she is meant to be protected.

INVALID CONSENT

The third and fourth scenarios in the section deal with consent which is invalid. These are the
circumstances where the victim gives her consent but not a valid consent as per law. Like the
“consent” which is “given under fear or misconception”.
Section 90 deals with the same-

“Section 90 Consent known to be given under fear or misconception:

 A consent is not such a consent as is intended by any section of this Code, if the consent
is given by a person under fear of injury, or under a misconception of fact, and if the
person doing the act knows, or has reason to believe, that the consent was given in
consequence of such fear or misconception”
 So the consent as specified earlier which can be used as an exonerating factor in favour of
accused does not cover the consent obtained by fear of death of injury of victim or any
other person and also does not cover the consent given by the victim believing that the
accused is her husband under misconception and obeys to have sexual intercourse,
provided that the accused is aware of the fact that the victim is under misconception and
willingly conceals the fact from the victim. It may be treated as consent obtained by
fraud.
 Further, when a person is under any fear other than the fear of death or of hurt, then it
will not be covered under clause 3 of this section. And if the woman believes that she is
married to the accused but not having any misconception, then it is not covered under
clause 4 of this section
 But such an act may be consent obtained by fraud and is still invalid consent. It means to
attract clause 4 of section 375, the woman must have a misconception that she believed
the accused to be another person, i.e., her husband and consented for sexual intercourse.
Other than those mentioned in clause 4, there are various ways in which the consent is
obtained by fraud means and are considered as invalid as per the law.

IV. WHO CAN GIVE CONSENT: LIMITATIONS TO PERSON GIVING CONSENT

 In the clauses (5), (6) and (7) gives us the limitation as to who can give the consent and
who cannot. The clauses tell that a person who is giving consent if is gives so due to
“unsoundness of mind” or in a state of “intoxication” or due to reason of “administration
of any stupefying or unwholesome substance” to the victim by the accused or if she is
under the age of 18 years old or by any other “person who is unable to communicate the
consent”.
  Hence a person who is unable to think rationally considered to be of unsound mind or
intoxicated, her consent is not a valid one.
 Also, when a victim is administered any substance which makes the person irrational or
not in a position to think that their decision has worse consequences will not be
considered as a person who can not give consent.
 Further people who are minor are not authorized to give consent, and their consent is
invalid. Some people are unable to communicate their consent, and if sexual intercourse
occurs, that amounts to rape, because they are not eligible to give consent.

Case :

Tulshidas Kanolkar v. State of Goa (AIR 2004 SC 978), the court was dealing with a case
where the accused has had sexual intercourse on repeated occasions with a mentally challenged
woman and was held to be guilty of rape.

The court held as-

“An act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance
or passive giving in when the faculty is either clouded by fear or vitiated by duress or impaired
due to mental retardation or deficiency cannot be considered to be consent as understood in law.

For constituting consent, there must be exercise of intelligence based on the knowledge of the
significance and the moral effect of the act. A girl, whose mental faculties are undeveloped,
cannot be said in law to have suffered sexual intercourses with consent”.

V. WHAT IS NOT RAPE: CIRCUMSTANCES WHICH ARE NOT AMOUNTING TO

RAPE

 There are incidents where the consent is given may not fall within the ambit of the
clauses of section 375 and becomes consensual sexual intercourse, or in some cases, the
victim may be the wife of the accused. Thus, in such cases, there is no rape.

CONSENSUAL SEXUAL INTERCOURSE UPON A PROMISE TO MARRY

 A woman who is of mature age or is an adult who has consented on having sexual
intercourse with the accused upon a promise made by him to marry her was challenged as
 rape. But the courts decided in various cases that this is not a misconception under clause
4 and others decided otherwise.
 It is observed that when there are circumstances proving that marriage to be an
impossible task or a difficult one to achieve, then the consent given was not a
misconception.
 And if the woman is cheated on such promise then too, it may not be rape but will be a
case under cheating or fraud, provided the accused had the intention to do so.
 Some courts have held the accused guilty, for breaking the promise and not marrying, as
having committed rape, even though the sexual intercourse was consensual.
 So, cases depend upon the discretion of the court and judge, for conviction, who depends
upon the facts and circumstances accordingly.
 Further when a woman is not aware that her husband is already married and has sexual
intercourse with the newly wedded one is said to have committed rape as the woman has
given consent under the misconception as provided in section 90 of IPC. Further, if
accused promises to marry after proving the commission of rape will not absolve his
liability. He will be held guilty for the same.

EXCEPTIONS: REFERENCE TO MARITAL RAPE ?

 The section itself provides for two exceptions, i.e., if there is a medical procedure which
seems to have fulfilled the criteria or essentials of rape, it may not be rape. As it is a mere
medical requirement but not an intentional act to commit rape.
 Further, the second exception says that if there is a sexual act or intercourse done by a
man to his wife who as per law requirement should not be under the age of 15, then it is
not rape.
 The second exception has been into a lot of debate, as people are urging the lawmakers to
make amendments to the law of rape to remove the marital status as an exception.
 The law in India seems to be based on patriarchal notions as it does not punish the
husband even though he commits rape i.e., forcefully or against the will of the wife or
without consent.
  All these aspects become irrelevant if it is proved that the person committing the offence
is the husband of the victim. However, in the US, marital rape is illegal as it is seen as
sexual violence or sexual abuse against the victim.
 Even if it is not rape under section 375 of IPC, marital rape is considered as domestic
violence. It can be a ground for partition from husband as under Protection of Domestic
Violence Act, 2005, sexual abuse is domestic violence.
 Further, if there are any issues, a woman can file a case against her husband under section
498A which again may or may not consider the forced sexual intercourse as violative of
this section.
 Every woman has a right to dignity, sexual privacy and self-determination and it must be
irrespective of marital status not only against outsiders or strangers.
 Thus, the woman must be protected against the offence of rape irrespective of her marital
status holding the privacy and liberty given to every person irrespective of marital state
under Article 21 of the Constitution of India.

VI. PUNISHMENT FOR RAPE

 The punishment for an offence under this category and for offences under this category
whose punishment is not provided, will be guided by section 376 of IPC.
 Further punishment for sexual offences which are specific in nature are given under
section 376A, 376E of IPC.
 The society urges on justice, and lawmakers try their best to make the punishment strict
and stringent.
 But it will be in vain if the justice is not delivered on time as the judges are more inclined
to provide justice and not to follow the eye-for-an-eye strategy.
 They do try to send out a message that the strict laws of rape are to protect a woman and
false cases will defeat that whole purpose.
 Further, it might make an innocent stand subject to defamation and humiliation. At the
end, the discretion lies upon the court and judges to award the punishment, who will try
at their best not to be unjust to neither of the parties.
  This section 376A too deals with sexual offences, but when there were many rape cases
leading to death or leading to a permanent vegetative state of victim, it becomes a bit
serious. Thus, there is a separate section dealing with punishment for such offences.
 It was added later on through a criminal amendment for the betterment of society and
maintaining law and order in the society.
 The person who repeats the commission of any of the offences as specified in the section
376E, he is known as a repeat offender, and the section has been added in the year 2013
through a criminal amendment.
 This section provides harsh punishment as the person committing it again is not allowed
to be free and liberal. Such repeating of offence is much graver than the offence itself.

GANG RAPE:

Initially, the section for gang rape was not given specific section or punishment. It was post-2013
that the section came to be more focused upon. Before that court used to rely on section 376(2)
(g) read with explanation 1, now it is severe and stricter in its application.

“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 and shall be punished with rigorous imprisonment for a
term 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.
 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”
 When one or more than one person commits rape on a woman, it is termed as “gang
rape”.
 The commission may be done by one or more from a group/gang, but it is necessary to
prove the presence of “common intention” amongst the group/gang. In such a scenario,
the law holds everyone in that group/gang liable in furtherance of “joint liability”.
 Hence, the common intention must be proved by showing that there was a meeting of
minds or prior concert amongst the members.

Case :

 Pradeep Kumar v. Union Administrator, Chandigarh ((2006) 10 SCC 608), The

supreme court observed that if the prosecution proves that there was a group with
common intention to commit rape, having a pre-determined plan to commit rape in which
everyone is participating in concert and having common intention acted upon the
furtherance of the same.
 And if only one person or more out of that group, may not be everyone committed the
rape for the fulfilment of the pre-determined plan, then everyone is liable.
 The court held that everyone would be liable only if the common intention and active
participation are proved but the commission of rape by everyone.
 Further, the mere presence of a member while the commission of rape by another is not
gang rape. And the person other than the perpetrator cannot be held guilty of gang rape.
A woman who is part of the group even though facilitating the commission of the offence
cannot be held guilty for gang rape or rape.
VII. Case Studies: Sexual Offences Under Indian Penal Code

1. DELHI GANG RAPE CASE: NIRBHAYA

 This case paved the way for amendments in rape laws for providing severe punishment
for the offenders. This case which occurred in the year 2012, was considered as the rarest
of the rare case as a young woman was gang-raped by five people in a private bus, while
she was returning to home at night post 9.
 Due to this incident, the victim who was subject to gang rape as well as unnatural
offence, had undergone multiple organ failure, serious damages caused to her private
parts as well as her other parts of the body and insertion of rod into the private parts of
the body. This shocked the general masses as the heinous crime committed by the
criminals causing the death of the victim were seen as a danger to society.

Case :

Mukesh & Anrs v. State (NCT of Delhi) & Ors (2017) 6 SCC 1 :

 The accused who were punished with the death penalty by the trial court which was
upheld by the high court, has appealed to the supreme court. The supreme court studied
the facts and circumstances and relying upon the dying declarations given by the victim
before her death, had affirmed the death penalty and opined that “where a crime is
committed with extreme brutality and the collective conscience of the society is shocked,
courts must award death penalty”.
 There were many review petitions filed by the accused but the supreme court at the end
finalised their execution. In the year 2020, they were executed to death, providing justice
to the victim’s family and society.
 But this case has not only led to awareness in the society but also many amendment to the
rape laws through criminal law amendment act 2013, also known as Nirbhaya Act.
Leading to additions in the category of the sexual offence, i.e., section 375, 376, 376A,
376B, 376C, 376D and 376E in the Indian penal code. Further section 114A of the Indian
Evidence Act was amended as per this act.
RAPE OF MINOR:

In the year 2018 due to increasing cases of rape of a minor, there were amendments made to rape
laws for the inclusion of sections 376AB, 376DA and 376DB in the Indian penal Code.

2. UNNAO RAPE CASE

 A girl of 17 years age, was gang-raped and murder in the year of 2017, by a politician.
When the victim reached out to the CM of UP for justice, her father was killed in judicial
custody which attracted many people’s attention. She was found to be raped by the BJP
politician Kuldeep Singh Sengar, belonging to Unnao Constituency.
 Later on an attempt to kill her was made by a preplanned car accident which led to
serious injuries to the victim and to her lawyer along with the death of two relatives.
 When the supreme court indulged into the matter, the accused was held guilty and was
sentenced to life imprisonment and a penalty of 25 lakhs. But after the verdict, the rape
survivor was murdered by stabbing and setting her ablaze by five men.

3. KATHUA RAPE CASE:

 In the year 2018, there was a rape case of 8-year-old minor being abducted, raped and
murdered in Kathua, J&K. She was found to have been gang-raped and was murdered.
The case led to hue and cry in public. “The Protection of Children from Sexual Offences
Act (POCSO)” was amended and severe punishments were imposed.
 Three accused held for rape and punished with life imprisonment and a fine of one lakh,
other three accused were held for destroying evidence and awarded five years
imprisonment.
 These were the two major incidents which led to alterations and additions in the rape
laws and POCSO act. The minors too needed much protection and care hence led to the
amendment 2018, which added the above sections in the category of “Sexual Offences”
in the Penal Code of India.
VIII. SEXUAL INTERCOURSE NOT AMOUNTING TO RAPE

 There are offences in which sexual intercourse is not rape but are illegal in the eyes of the
law. These sexual intercourses may be consensual but are punishable under law. Under
the sections 376B and 376C. The difference between these sections to that of other
sexual offences is “consent”.
 The proof that the “sexual intercourse” was “not amounting to rape” can be given by
proving the consent.
 It punishes the accused who has a fiduciary relationship with any woman. The accused
must be a person in authority in case of section 376C. But in the case of 376B, the
husband must not have sexual intercourse with his wife when they have opted for a
decree of separation.

VICTIM OF RAPE: IDENTITY AND ASSISTANCE-

 In India, the section 228A mandates that the victim of a rape case, should be protected
and her identity must not be disclosed so as to safeguard her dignity. It was added in the
year 1983, through an amendment.
 Further, the case of Delhi Domestic Working Women’s Forum v. Union of India
(1995) 1 SCC 14, had laid down the parameters for assisting a rape victim. Further, the
fine imposed upon the convicted person is for the victim to pay for the medical treatment
expenditure and expenditure caused by the court case. The doctors belonging to hospitals
of the State Government or the Central Government must provide medical facilities and
assistance free of cost.