Mamta Vermani

C - 177

A critical
analysis of
the offence of
Rape under
IPC
Subject: Law of Crimes
Professor: Prof. Poorva
Dighe & Dr. Chhaya Shah
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Acknowledgement

I would like to express my gratitude to my professors Prof. Poorva Dighe & Dr. Chhaya Shah
as well as our principal Dr. Priya Shah who gave me a wonderful opportunity to work on the
project “A critical analysis of the offence of Rape under IPC” which also helped me do a lot of
research and I ended up exploring one more side of my talent. This research also helped me
know about various new things that included the detailed study of rape in India.

Thank you to both the professors & principal ma’am for providing your invaluable guidance,
comments & suggestions throughout the course of project. I would also like to thank them for
constantly supporting & motivating us to work harder & achieve our desired goals.

Lastly, I would like to thank my family who supported me throughout & my batchmates who
helped me with clarification of doubts.

Everyone helped me a lot to complete this project in the given time frame & made this project
a successful one.

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Contents

1. Introduction......................................................................................................................... 4

2. Basic concepts..................................................................................................................... 5

3. Section 375 of Indian Penal Code – Rape .......................................................................... 5

a. When is a man said to commit “rape”? ....................................................................... 5

b. Essentials of rape ......................................................................................................... 6

c. Exceptions.................................................................................................................... 7

4. Section 376 of Indian Penal Code – Punishment of Rape .................................................. 7

a. Section 376 - Punishment for Rape ............................................................................. 7

b. Section 376A - Punishment for causing death or resulting in persistent vegetative

state of victim.................................................................................................................... 10

c. Section 376AB - Punishment for rape on woman under twelve years of age ........... 11

d. Section 376B - Sexual intercourse by husband upon his wife during separation. ..... 11

e. Section 376C - Sexual intercourseby a person in authority....................................... 12

f. Section 376D - Gang rape.......................................................................................... 12

g. Section 376DA - Punishment for gang rape on woman under sixteen years of age . 13

h. Section 376DB - Punishment for gang rape on woman under twelve years of age .. 14

i. Section 376DB - Punishment for repeat offenders .................................................... 14

5. Sections 377 of Indian Penal Code - Unnatural offences ................................................. 15

6. Landmark judgements....................................................................................................... 15

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7. Landmark cases................................................................................................................. 16

8. Conclusion ........................................................................................................................ 19

9. Bibliography ..................................................................................................................... 20

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1. Introduction

According to the latest data released by the National Crime Records Bureau (NCRB),
India, around 88 rape cases are recorded every day. Considering the growing ratio of rape
cases, it is really important that people of India must be aware about the Section
375. Section 375 of IPC defines rape as a criminal offence. The Act states that a man is
said to commit rape when he has sexual intercourse with a woman without her consent,
against her or if she is a minor. Under Section 375 of IPC, merely the penetration is
sufficient to constitute the sexual intercourse necessary to the offence of rape. After the
tragic December 2012 Delhi gangrape and murder more number of women got encouraged
to report the crime. The number of rapes reported nationwide in 2017 has fallen below the
elevated number reported in the aftermath of 2012. Simultaneously, the conviction rate has
grown.

45,000 35.00%

40,000
30.00%

35,000
25.00%
30,000
Count of Cases

25,000 20.00%

20,000 15.00%

15,000
10.00%
10,000

5.00%
5,000

- 0.00%
2010 2011 2012 2013 2014 2015 2016 2017
Year

Annual Conviction FIR Registered Conviction Rate

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2. Basic concepts

a. Consent: According to Section 375, consent is defined as clear, voluntary

communication that the woman gives for a certain sexual act. Marital rape is an
exception to giving consent as it is not a crime under the Indian Penal Code, as long
as the woman is above 18 years of age.

b. Will: The word refers to the reasoning power of the mind to determine whether to do
an act or not. In other words, an act of will refers to a desire to participate by a person
without being under pressure or under the influence of any other person.

c. Coercion: ‘Coercion’ is the committing, or threatening to commit, any act forbidden

by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to
detain, any property, to the prejudice of any person whatever, with the intention of
causing any person to enter into an agreement.

d. Misrepresentation: Misrepresentation is defined under Section18 of the Indian

Contract Act, 1872 which says, a misrepresentation is a form of a statement made
preceding to the contract being completed.

e. Fraud: Fraud implies and involves any of the following acts committed by a
contracting party or his connivance or his agent with the intention of deceiving or
inciting another party or his agent to enter into the agreement.

f. Intoxicated: Affected by alcohol or drugs especially to the point where physical and
mental control is markedly diminished.

g. Duped: A person who is easily deceived or fooled.

3. Section 375 of Indian Penal Code – Rape

Section 375 of the Indian Penal Code defines rape as "sexual intercourse with a woman
against her will, without her consent, by coercion, misrepresentation or fraud or at a time
when she has been intoxicated or duped, or is of unsound mental health and in any case if
she is under 18 years of age.

a. When is a man said to commit “rape”?

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A man is said to commit “rape” if he:

 applies his mouth to the vagina1, anus, urethra of a woman or makes her to do so
with him or any other person; or

 manipulates any part of the body of a woman so as to cause penetration into the
vagina, urethra, anus or any part of body of such woman or makes her to do so
with him or any other person; or

 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

 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.

b. Essentials of rape

 Against her will. (State of Punjab v. Gurmit Singh, 1996)2

 Without her consent. (State of Himachal Pradesh v/s Mango Ram, 2000)

 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. (State of Maharashtra
v. Prakash, 1992)3

 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. (Deelip Singh vs State Of Bihar, 2004)4

 With her consent, when, at the time of giving such a 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.
(Tulshidas Kanolkar v/s The State of Goa, 2003)

1
Includes labia majora.
2
State of Punjab v. Gurmit Singh, 1996 AIR 1393, 1996 SCC (2) 384
3
State of Maharashtra v. Prakash, 1992 AIR 1992 SC 1275, 1992 Cri.L. J 1924, 1993 (1) SCALE 721, 1993
Supp (1) SCC 653
4
Deelip Singh vs State Of Bihar, 2004 AIR 2005 SC 203

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 With or without her consent, when she is under eighteen years of age. (Formerly
16 – below the age of 16 years, the consent is irrelevant) (Nana Ramchandra
Jadhav vs State Of Maharashtra, 1984)5

 When she is unable to communicate consent. (Guddoo vs State Of U.P, 2017)

c. Exceptions

 A medical procedure or intervention shall not constitute rape.

 Sexual intercourse or sexual acts by a man with his own wife, the wife not being
under fifteen years of age, is not rape. (Independent Thought vs Union Of India,
2017)

4. Section 376 of Indian Penal Code – Punishment of Rape

a. Section 376 of Indian Penal Code - Punishment for Rape

 Whoever, except in the cases provided for by sub-section (2), commits rape shall
be punished with imprisonment of either description for a term which shall not be
less than seven years but which may be for life or for a term which may extend to
ten years and shall also be liable to fine unless the women raped is his own wife
and is not under twelve years of age, in which cases, he shall be punished with
imprisonment of either description for a term which may extend to two years or
with fine or with both: Provided that the court may, for adequate and special
reasons to be mentioned in the judgment, impose a sentence of imprisonment for
a term of less than seven years.

 Whoever-

 being a police officer6 commits rape-

o within the limits of the police station to which he is appointed; or

o in the premises of any station house whether or not situated in the

police station to which he is appointed; or

5
Nana Ramchandra Jadhav vs State Of Maharashtra, 1984 (1) BomCR 453
6
"Police officer" shall have the same meaning as assigned to the expression "police" under the Police Act, 1861

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o on a woman in his custody or in the custody of a police officer

subordinate to him; or

 being a public servant, commits rape on a woman in such public servant's

custody or in the custody of a public servant subordinate to such public
servant; or

 being a member of the armed forces7 deployed in an area by the Central

or a State Government commits rape in such area; or

 being on the management or on the staff of a jail, remand home or other

place of custody established by or under any law for the time being in
force or of a women's or children's institution8, commits rape on any
inmate of such jail, remand home, place or institution; or

 being on the management or on the staff of a hospital, commits rape on a

woman in that hospital9; or

 being a relative, guardian or teacher of, or a person in a position of trust

or authority towards the woman, commits rape on such woman; or

 commits rape during communal or sectarian violence; or

 commits rape on a woman knowing her to be pregnant; or

 commits rape, on a woman incapable of giving consent; or

 being in a position of control or dominance over a woman, commits rape

on such woman; or

 commits rape on a woman suffering from mental or physical disability; or

 while committing rape causes grievous bodily harm or maims or

disfigures or endangers the life of a woman; or

 commits rape repeatedly on the same woman

7
"Armed forces" means the naval, military and air forces and includes any member of the Armed Forces
constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces
that are under the control of the Central Government or the State Government.
8
"women's or children's institution" means an institution, whether called an orphanage or a home for neglected
women or children or a widow's home or an institution called by any other name, which is established and
maintained for the reception and care of women or children.
9
"hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and
treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.

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shall be punished with rigorous imprisonment for a term which shall not be less
than ten years, but which may 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.

 Whoever, commits rape on a woman under sixteen years of age shall be punished
with rigorous imprisonment for a term which shall not be less than twenty years,
but which may 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

 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 sub-section shall be paid
to the victim.

Offence Punishment Cognizance / Trial

Bail

Rape Rigorous Cognizable / Court of

Imprisonment for 10 Non-bailable Session
years to
Imprisonment for
Life + Fine

Rape by a police officer or a Rigorous Cognizable / Court of

public servant or member of Imprisonment for 10 Non-bailable Session
armed forces or a person years to
being on the management or Imprisonment for
on the staff of a jail, remand Natural-Life + Fine
home or other place of
custody or women’s or
children’s institution or by a
person on the management
or on the staff of a hospital,

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and rape committed by a

person in a position of trust
or authority towards the
person raped or by a near
relative of the person raped.

Persons committing offence Rigorous Cognizable / Court of

of rape on a woman under Imprisonment for 20 Non-bailable Session
sixteen years of age. years to
Imprisonment for
Natural-Life + Fine

b. Section 376A of Indian Penal Code - Punishment for causing death or resulting
in persistent vegetative state of victim

 Whoever, commits an offence punishable under sub-section (1) or sub-section (2)

of section 376 and in the course of such commission inflicts an injury which
causes the death of the woman or causes the woman to be in a persistent
vegetative state, shall be punished with rigorous imprisonment for a term which
shall not be less than twenty years, but which may extend to imprisonment for
life, which shall mean imprisonment for the remainder of that person's natural
life, or with death.

Offence Punishment Cognizance / Trial

Bail

Person committing an Rigorous Cognizable / Court of

offence of rape and Imprisonment for 20 Non-bailable Session
inflicting injury which years to
causes death or causes the Imprisonment for
woman to be in a persistent Natural-Life or
vegetative state Death

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c. Section 376AB of Indian Penal Code - Punishment for rape on woman under
twelve years of age

 Whoever, commits rape on a woman under twelve years of age shall be punished
with rigorous imprisonment for a term which shall not be less than twenty years,
but which may extend to imprisonment for life, which shall mean imprisonment
for the remainder of that person's natural life, and with fine or with death:

 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.

d. Section 376B of Indian Penal Code - Sexual intercourse10 by husband upon his
wife during separation

 Whoever has sexual intercourse with his own wife, who is living separately,
whether under a decree of separation or otherwise, without her consent, shall be
punished with imprisonment of either description for a term which shall not be
less than two years but which may extend to seven years, and shall also be liable
to fine.

Offence Punishment Cognizance / Trial

Bail

Sexual intercourse by 2 to 7 years + Fine Cognizable (on Court of

husband upon his wife complaint of Session
during separation victim) /
Bailable

10
In this section, "sexual intercourse" shall mean any of the acts mentioned in clauses (a) to (d) of section 375.

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e. Section 376C of Indian Penal Code - Sexual intercourse by a person in authority11

 Whoever, being-

 in a position of authority or in a fiduciary relationship; or

 a public servant; or

 superintendent12 or manager of a jail, remand home or other place of

custody established by or under any law for the time being in force, or a
women's or children's institution; or

 on the management of a hospital or being on the staff of a hospital, abuses

such position or fiduciary relationship to induce or seduce any woman
either in his custody or under his charge or present in the premises to have
sexual intercourse with him, such sexual intercourse not amounting to the
offence of rape, shall be punished with rigorous imprisonment of either
description for a term which shall not be less than five years, but which
may extend to ten years, and shall also be liable to fine.

Offence Punishment Cognizance / Trial

Bail

Sexual intercourse by a Rigorous Cognizable / Court of

person in authority Imprisonment for 5 Non-bailable Session
to 10 years + Fine

f. Section 376D of Indian Penal Code - 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

11
For the purposes of this section, Explanation 1 to section 375 shall also be applicable.
12
"Superintendent", in relation to a jail, remand home or other place of custody or a women's or children's
institution, includes a person holding any other office in such jail, remand home, place or institution by virtue of
which such person can exercise any authority or control over its inmates.

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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.

Offence Punishment Cognizance / Trial

Bail

Gang rape Rigorous Cognizable / Court of

Imprisonment for 20 Non-Bailable Session
years to
Imprisonment for
Natural-Life + Fine
paid to the victim

g. Section 376DA of Indian Penal Code - Punishment for gang rape on woman
under sixteen years of age

 Where a woman under sixteen years of age 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 imprisonment for 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.

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 Provided further that any fine imposed under this section shall be paid to
the victim.

h. Section 376DB of Indian Penal Code - Punishment for gang rape on woman
under twelve years of age

 Where a woman under twelve years of age 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 imprisonment for life, which shall mean imprisonment for the
remainder of that person's natural life, and with fine, or with death:

 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.

i. Section 376E of Indian Penal Code - Punishment for repeat offenders

 Whoever has been previously convicted of an offence punishable under section

376 or section 376A or [section 376AB or section 376D or section 376DA or
section 376DB,] and is subsequently convicted of an offence punishable under
any of the said sections shall be punished with imprisonment for life which shall
mean imprisonment for the remainder of that person's natural life, or with death.

Offence Punishment Cognizance / Trial

Bail

Repeat offenders Imprisonment for Cognizable / Court of

Natural-Life or Non-bailable Session
Death

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5. Sections 377 of Indian Penal Code - Unnatural offences

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman
or animal, shall be punished with [imprisonment for life], or with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.13

Offence Punishment Cognizance / Trial

Bail

Unnatural offences Imprisonment for Life Cognizable / Magistrate

or 10 Years + Fine Non-bailable first class

6. Landmark judgements

a. Nirbhaya Case (March 2013)

It is the landmark judgement of supreme court in 2013. A case that awakens the
nation’s consciousness led the supreme court to pass a landmark judgment that
widened the definition and scope of punishment in Rape laws. A young girl was gang
raped by 6 people, which included 5 adults and 1 minor in a bus. Later, they threw the
body of the girl and kicked her male friend out of the bus and fled. The Supreme Court
after viewing all the facts of the Nirbhaya case gave death sentence to 4 adults and
sent the minor to reform facility for 3 years. The Rape law was amended and the
definition of rape was amended and widened. The definition will reprimand
penetration of any woman’s orifice with any part of man’s body or with any material
or object. The punishment of rape included a compulsory minimum sentence of 20
years and death in extreme cases, and a criminal case can be filed by the best Criminal
Lawyers. It is one of the landmarks criminal cases in India.

b. Section 377 (2014)

13
Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

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The judgement on the section 377 is the landmark judgement of supreme court of
India in 2014. As per Section 377 of IPC, Gay sex is a punishable offence, irrespective
of age and consent where punishment is ‘life term’ sentence. Later, High Court passed
a landmark judgment which cancelled Section 377 quoting that it is unconstitutional
with respect to sex between consenting adults. Later, the judgment was ruled out by
Supreme Court that ordered the existence of Section 377, but left the onus on
Parliament for final consideration on keeping it or amending it. The landmark
judgment passed by Supreme Court now recognizes the status of transgender as Third
Gender, where this category has to be treated under minorities and thus, should hold
reservation quota in jobs, education and amenities. But, Section 377 still exists and is
applicable on gay sex. In one of the recent supreme court judgements the court has
again asked to re-examine the constitutionality of Section 377 in light of the changing
societal norms.

c. Minor rape survivor was allowed abortion (2015)

A 14-year-old rape survivor from the state of Gujarat appealed before the Supreme
Court against the order of State High Court which denied the permission to terminate
the pregnancy. This Supreme Court landmark judgment overturned the decision of the
High Court by allowing abortion in India if the clinical psychologists and
gynaecologists allow the same.

7. Landmark cases

a. Nirbhaya case (March 2013) - Mukesh & Anr. vs. State for NCT of Delhi & Ors.

On December 16,2012, a paramedical student was gang raped and brutally assaulted
by six men in a private bus and thrown out of the moving vehicle along with her male
friend. The victims later succumbed to injuries. All convicts Mukesh Kumar, Vinay
Sharma, Pawan Gupta and Akshay Singh – have been sentenced to death. The order
has been upheld by the high court and the Supreme Court. Except Pawan all convicts
have exhausted their legal remedy available to file a curative petition before the
Supreme Court. The President has already rejected the mercy pleas of convicts
Mukesh and Vinay.

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b. Tuka Ram And Anr vs State of Maharashtra, AIR 1979 SC 185 (Mathura Case)

The Supreme Court stated that the nature of consent of the victim had to be determined
from the circumstances and the circumstances made it clear that the consent was not
“passive”. There was no injury on the person of the girl, it could not be deduced that
the girl had been subjected to or was under any fear or compulsion such as would
justify an inference of any “passive submission “.

As for the allegations made against Tukaram, the first information report the girl had
made against Tukaram had serious allegations on which she had gone back at the trial
and the acts covered by which she attributed in her deposition to Ganpat instead. If
the girl could alter her position in regard to these serious allegations at will, where is
the assurance that her word is truthful in relation to what she now says about Tukaram?
Thus, charge remains wholly unproved against Tukaram appellant.

In conclusion, the appeal succeeds and is accepted. The judgment of the High Court
is reversed and the conviction recorded against as well as, the sentences imposed upon
the appellants by it are set aside. The appellants are thus acquitted.

c. Independent Thought vs. Union of India and Anr.

The Division Bench gave the following judgment while discussing all the relevant
issues related to the case:

 The exception 2 discriminates between a married girl child and an unmarried girl
child without any reasonable nexus. It violates the bodily integrity, dignity and
reproductive choice of a girl child.
 The Parliament has increased the age for giving consent, the age from marriage
to 18 years. So the age of 15 years in exception 2 is unreasonable, unjust, unfair
and violates the right of the girl child.
 The exception 2 states that sexual intercourse or sexual act by a man with his wife
is not rape if she is above 18 years.

d. Tulsidas Kanolkar v. The State of Goa

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It was held that the accused took advantage of the mental retardation and helplessness
of the patient. In such a scenario no question of consent arises because a mentally
challenged girl cannot give consent. And submission does not imply consent which
can also be due to fear or vitiated by duress or impaired due to mental retardation. The
accused was asked to pay a fine of Rs. 10000 and punishment with 10 years of
imprisonment.

e. Dileep Singh v. State of Bihar

The man was held liable under Section 375 of IPC for rape. The judges said that the
consent of the girl for sexual intercourse was obtained by fraud as he promised to
marry her. The consent which is obtained by fraud committed with the victim is no
consent.

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8. Conclusion

The laws regarding rape in India only cover the tip of the iceberg and fails to recognise as
well as acknowledge the existence of the rest. Rape of men or homosexual rape is not even
considered rape.

The punishments are too less for such a heinous offence; hence, it has failed to deter the
crime. The cases of rape in India are rising every day, the majority of which goes
unreported. It is really important to educate our society regarding their legal rights as well
as duties and spread more awareness.

There are massive changes and additions required in the current rape laws of our country.
The law needs to change and adapt to society.

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9. Bibliography

a. Blog pleaders
b. Lawyers club India
c. Indian kanoon
d. Indian code
e. Legal service India

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