Unit 2

Sexual and Unnatural Offences

(Sec.375 to Sec.377)
Law of Crime II

Prachi Pandya
Assistant Professor
 Rape(Se.375)
• Rape in India is now a common crime than murder. If we see in terms of
crime rate, India stands at 2.2 in terms of murder while stands at 5.2 in terms
of rape according to the National Crime Record Bureau(NCRB) till 2017 even if
we exclude the other sexual offences like acid attacks, sexual harassment,
voyeurism(practice of spying of people involved in intimate behaviors),
disrobe a woman etc.
• Also, these crime rates are made according to the cases filed in the court but
what about those incidents which are never reported in the police station
due to illiteracy, lack of awareness, fear of respect, fear from society, just
think of that.
• Also, we cannot blame the laws related to sexual offences because now the
courts after the outrage of the severe cases, especially after the Nirbhaya
case have made very important amendments like they have widened the
definition and scope of rape because earlier the definition was just restricted
to the ‘Sexual Intercourse’ which was interpreted as “Mere slightest or partial
penetration of the male organ with the labia majora or the vulva or pudenda
is sufficient to commit a rape” but after The Criminal Law Amendment Bill,
2013 they have explained the whole definition and made it very clear.
• 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”.
 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.
• Nirbhaya Case
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.
 Definition
• 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, urethra, anus or any part of body of such woman or makes her
to do so with him or any other person; or
(d) 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:—
I. First.—Against her will.
II. Secondly.—Without her consent.
III. 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.
IV. 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.
V. 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.
VI. Sixthly.—With or without her consent, when she is under eighteen years of age.
VII. 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 Features
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.”
• 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 rap.
Essential Elements descrbed briefly:
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.
• The concept of ‘Against her will’ was first explained by the court in the case of Chotelal vs
State of Uttar Pradesh, where it was held that ‘Against her will’ means that the sexual
intercourse has been done despite the woman has resisted and has opposed to the
intercourse.
Without Consent:
• The term ‘Consent’ basically means the voluntary agreement by the words,
gestures, direct or indirect form, a verbal or non-verbal form of communication
to engage herself in sexual intercourse. It is the most essential element to
constitute rape because consensual intercourse does not amount to rape, and
obviously, if the intercourse has been done by the consent, then, it defeats all the
provisions related to sexual offences under IPC.
• Also, there is no obligation on the man to prove that whether the consent was
there or not at the time of the intercourse the burden of proof is on the woman
to proof for the consent.
• However, it has been interpreted by the courts that have incorporated in several
sections of the IPC that consent obtained by misrepresentation or fraud is not
consent.
• The focus related to this ingredient should be on the cases where prostitutions
are involved because it involved consent in return of the monetary consideration
by the man, therefore, if we see technically and according to the legal provisions,
this is valid but actually, prostitution is illegal, therefore, the legislation should be
made on the prostitution under IPC that whether consent obtained in return of
money is a consent or not.
• 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.
• “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.
Consent obtained under Fear of Death or of Hurt(Invalid Consent):
• Section 375(c) of the IPC asserts that consent of the woman in order to
exonerate the accused of the charge of rape must be given freely and
voluntarily without any fear of death or injury. In such a case the
consent obtained will not be valid consent.
• The scope of the clause has been widened by the Criminal Law
(Amendment) Act 1983 by the insertion of the words “or any person in
whom she is interested” after the words “putting her” in fear of death or
hurt in the clause.
• In the case of Prakash vs State of Maharashtra, where there was sexual
intercourse with the wife by the businessman and policeman where they
obtained the consent because they started beating her husband. The
court held them liable and said that the actual force is not necessary but
a threat to use force is sufficient to obtain the consent for intercourse.
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”.
In the case of 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.
Consent Obtained by Fraud:
• As incorporated in Section 375(4) of the IPC that consent given by a woman to
a person for intercourse believing the person to be her husband whereas, in
fact, he is not her husband, is no consent in law. In such a situation the person
knows the fact of deception and pretends to be the husband of the woman.
• These cases are basically related to the bigamy which means that at the time
of the marriage, the accused has another spouse living and the consent is
obtained by making believe to his wife that he is unmarried to obtain the
consent for sexual intercourse with the victim.
Case:
Bhupinder Singh v. Union Territory of Chandigarh
• where the complainant Manjit Kaur married the accused Bhupinder Singh, who she
had met through work, in 1990 and they engaged in the intimate relations.
• Later, she became pregnant but accused made her abortion in 1991. When she was
pregnant again in 1994, she met her husband’s two friends who told her that he
was already married and had children from his first wife. On being confronted her
husband left her on the pretence of work and did not turn up even after she gave
birth to a daughter.
• She made a complaint and he was held guilty of rape because prosecutrix married
accused without knowledge of his first marriage. The consent for cohabitation was
given under the belief that the accused was her husband. It was also held that
delay in lodging complaint by prosecutrix couldn’t, in any event, wash away the
offence because there was no consent. Therefore, the Supreme Court refused to
interfere with the order of conviction passed by the High Court.”
 Is Promise to Marry the Victim a Misconception of Fact Viciating
her Consent?
• There is a difference between a ‘breach of a promise’ and ‘a false promise’.
• Breach of promise is done in a bonafide form, where the consent to engage in
sexual intercourse is made by making promise to marry but later the situations and
circumstances are such that later he refuses to marry, that does not amount to rape
because the intention was good at the time of the intercourse and he genuinely
wanted to marry her.
• whereas ‘false promise’ includes the consent obtained only for having sexual
intercourse with a woman and is having mala fide intention at the time of obtaining
the consent, and where promise to marry was used as a tool to obtain the consent,
therefore, this amounts to rape. Therefore, it totally depends upon the intention of
the man or a woman, however, the burden of proof is on the woman to proof the
mala fide intention of the man to prevent the man from being accused against the
malicious and false proceedings against them.
  Consent of an Insane or Intoxicated Woman

• Section 375(5) of the IPC states that if the consent has been taken of the woman
who at the time of giving the consent was intoxicated or not of sound mind or if the
consent is taken by administration by him personally by any stupefying substance to
which the woman is unaware about the consequences of that to which she gives
consent.
• This clause was incorporated by the Criminal Law Amendment, 1983 to prevent the
girl from being raped in a condition where she is not aware of the consequences of
her actions and the man knowing about this condition can not take advantage of
that woman by obtaining the consent in that situation.
• in the case of Tulsidas Kanolkar vs State of Goa where the accused had sexual
intercourse with the girl when she was intoxicated and the girl later became
pregnant. The Apex court held him liable and was given the rigorous imprisonment
of ten years with the fine of Rs.10000.
  Consent of a Woman under Eighteen Years of Age

• As incorporated in Section 375(6) of the IPC, a man is said to commit a rape, if

the consent has been taken of a girl who is below the age of eighteen.
• Earlier, the age for giving the consent was sixteen but after the Criminal Law
Amendment Act, 2013, it was extend to eighteen years after the Nirbhaya Case
to prevent the sexual offences and abuse to the teenagers, because the courts
have interpreted that girls of the age group from 13 to 18 years are not that
mature to understand the consequences of the acts related to intimated
relations, therefore, the courts have immuned them.
• Also, the fact that every person gets its every right when he/she becomes an
adult and the age is considered as eighteen years, therefore, the age for giving
the consent is to be made as eighteen years.
Marital Rape—An Exception to ‘Rape’

• from the view of a man and the other from the woman. If we see
from the woman side, sexual intercourse with a wife without her
consent amounts to physical and sexual violence
• Right to make choices were given related to sexual activities, with
right to liberty, privacy, dignity and bodily integrity under Article 21 of
the constitution. The constitutionality of this exception has also been
challenged in several petitions as violative of Article 14 and 21 of the
Indian Constitution. As Article 14 states about the equality before the
law and equal protection of laws, the woman is discriminated against
the criminal law who are the victims who have been raped by the
husbands. This section also discriminates against the married woman
by denying them equal protection from rape and sexual harassment.
 Punishment for Rape (Sec.376)
(1) Whoever, except in the cases provided for in sub-section (2), commits rape,
shall be punished with rigorous imprisonment of either description for a
term which [shall not be less than ten years, but which may extend to
imprisonment for life, and shall also be liable to fine].
(2) Whoever,—
(a) being a police officer, commits rape—
(i) within the limits of the police station to which such police officer is
appointed; or
(ii) in the premises of any station house; or
(iii) on a woman in such police officer's custody or in the custody of a police
officer subordinate to such police officer; or
(b) 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
(c) being a member of the armed forces deployed in an area by the Central or a
State Government commits rape in such area; or
(d) 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 institution, commits rape on any inmate of such jail,
remand home, place or institution; or
(e) being on the management or on the staff of a hospital, commits rape on a
woman in that hospital; or
(f) 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
(g) commits rape during communal or sectarian violence; or
(h) commits rape on a woman knowing her to be pregnant; or
(j) commits rape, on a woman incapable of giving consent; or
(k) being in a position of control or dominance over a woman, commits rape on
such woman; or
(l) commits rape on a woman suffering from mental or physical disability; or
(m) while committing rape causes grievous bodily harm or maims or disfigures
or endangers the life of a woman; or
(n) commits rape repeatedly on the same woman,
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.
• Explanation.—For the purposes of this sub-section,—
(a) “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;
(b) “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;
(c) “police officer” shall have the same meaning as assigned to the expression
“police” under the Police Act, 1861 (5 of 1861);
(d) “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.
(3) 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
 Punishment for causing death or resulting in persistent
vegetative state of victim(Sec.376A)
• 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.
 Punishment for rape on woman under twelve years of
age.(Sec.376AB)
• 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.
 Sexual intercourse by husband upon his wife during
separation.(Sec.376B)
• 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.
• Explanation.—In this section, “sexual intercourse” shall mean any of
the acts mentioned in clauses (a) to (d) of section 375.
 Sexual intercourse by a person in authority(Sec.376C)

• Whoever, being—
(a) in a position of authority or in a fiduciary relationship; or
(b) a public servant; or
(c) superintendent 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
(d) 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.
• Explanation 1.—In this section, “sexual intercourse” shall mean any of the
acts mentioned in clauses (a) to (d) of section 375.
• Explanation 2.—For the purposes of this section, Explanation 1 to section
375 shall also be applicable.
• Explanation 3.—“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.
• Explanation 4.—The expressions “hospital” and “women's or children's
institution” shall respectively have the same meaning as in Explanation to
sub-section (2) of section 376.
 Gang rape(Sec.376D)

• 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.
• As in the case of 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.
  Cases:
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.
• his rape case which occurred in 2012, was considered as the rarest of the rare case.
Various amendments were introduced in the rape laws after this heinous incident.
The accused was punished with death penalty by the trial court which was also
upheld by the high court. The Supreme Court relying on the dying declaration of
victim, had affirmed the death penalty[20] and opined that “where a crime is
committed with extreme brutality and the collective conscience of the society is
dismayed, courts must award capital punishment.
2. Mukesh & Anrs v. State (NCT of Delhi) &Ors (2017) 6 SCC 1
• In the case of 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 extreem brut ality 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, 3 76B, 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.
3. 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.
4. 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.
5. Mathura Rape Case
• Tuka Ram And Anr vs State of Maharashtra was a custodial rape case, where
a girl was raped in Desai Gunj Police Station in Maharashtra. The Supreme
Court held that sexual intercourse in this case does not constitute rape. Due
to the rationale behind this judgement, huge public outcry took place which
led to the Criminal Law( Second Amendment) Act, 1983.
Punishment for gang rape on woman under sixteen years of age
(Sec.376DA)
• 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:
• Provided further that any fine imposed under this section shall be
paid to the victim.
 Punishment for gang rape on woman under
twelve years of age.(Sec.376DB)
• 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.
 Punishment for repeat offenders(Sec.376E)

• 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.]]
 Evidence of Prosecutrix
• As written in the definition of rape, the word ‘penetration’ is
mentioned which is itself sufficient to constitute rape and it does not
exclude ‘partial penetration’. It has been strictly interpreted by the
court in Nirbhaya Case, that even slight penetration will amount to
rape.
• Other evidence can be the biological evidence which is obtained by
the crime laboratories like semen, blood, vaginal secretions, vaginal
cells, these can be identified. Also, tools like rape kits are very useful
in determining the extent of penetration. DNA profiling method is
also used to identify the accused. Motile sperm are also collected by
the crime laboratories which is produced during the recent coitus to
identify the accused and in these cases, the statement of the victim is
considered as strong evidence and mainly the primarily evidence.
 Disclosure of Identity of Rape Victims
• Section 228-A of the IPC which was inserted after the Criminal Law
Amendment Act, 1983 states about the disclosure of the identities of certain
offences, in which it has been specifically written that whoever prints or
publishes about the identity of the victims related to the offence mentioned in
Section 376, 376A, 376B, 376C, 376D, 376DA, 376DB, 376E will be liable for
imprisonment for either description of the term which may be extended up to
two years and shall also be liable for the fine.
• It has also been mentioned in Section 23 of the POCSO (Prohibition of
Children from Sexual Offences) Act, 2012 to imprisonment for two years if
any person has revealed about the name, address, photograph, family details,
schools, neighbourhood and similarly the restrictions are also made in Section
21 of the Juvenile Justice Act, 2000.
• The proposed idea behind this was to save the victim from the post offence
atrocities of society which came in the form of ridicule and deterioration of
marriage prospects. Rape and sexual assault victims were commonly targeted
as one who was abetting the crime. Surrendering to the social stigma of
victimization after the crime, the legislature came up with Section 228A
prohibiting anyone from making the identity of a victim of such offence
known.
• While it cannot be denied that the media houses and news reporting agencies
are cautious about such law, still there have been instances where there have
been willful or negligent breaches. But the irony and apathy about these
provisions are there have been many instances where the judiciary whether
the Supreme Court, the High Court or the Trial Court have rashly disclose the
identity of the victims in several cases and these judgements were widely
circulated by the websites, social media. However, the courts have
conveniently ruled that provisions given under Section 228-A are not
applicable to the judicial servant acting in a bonafide manner.
• he Hon’ble Supreme Court in the case of State of Karnataka vs Puttaraja has
stated that in the cases related to sexual offences, the name of the victim will
not be revealed by the courts but instead of name, they will be called as
‘victim’ in the case for the social object to prevent the social victimization of
the sexual offence for which the Section 228-A was enacted.
• Also if we emphasis this section, it has been made as a non- compoundable
offence to prevent the powerful media houses from purchasing the victim’s
approval from money for selling the news.
• As these days, care should be taken on social media rather than to media
houses because now the news spread very fast through Whatsapp, Facebook
etc. and people share it in the bonafide intention and not to harm the
reputation of the other but they are unaware about the consequences of
their act, therefore, certain restrictions should be made by the Ministry of
Information and Technology to prevent the sharing of the identities of the
victim because reasonable restrictions can be imposed by the state to right to
freedom of expression guaranteed under our Constitution.
 Unnatural Offences (Sec.377)
(Unconstitutional)
• 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.
• Explanation.—Penetration is sufficient to constitute the carnal intercourse
necessary to the offence described in this section.
• This section came into existence in 1861 during the British rule where the
term “against nature” included homosexual activities. Unnatural offences also
include sterilization, sodomy, bestiality etc.
• This section has not made any classification between the married or
unmarried woman because in marriage under Hindu Law(Hindu Marriage Act,
1954) also sodomy, bestiality or sterilization are the grounds for the
annulment of the Hindu marriage.
• Also, the concept of bestiality revolves around the consent as how can you
obtain the consent of an animal when they are not able to communicate,
similarly ‘anal’ or ‘oral’ sex is equally unnaturally because both these two are
out of the scope of the normal sexual intercourse and are physically harmful
to both men and woman and are not the essential ingredients for a sexual
intercourse.
• A number of incidents had led to vulnerability of transgender, transsexual,
gays, lesbians, asexual, bisexuals as a result of section 377. Later, looking at
all the aspects, Naz Foundation India Trust challenged the constitutionality
of Article 377 considering Article 14, 15, 19 and 21 before the High Court of
Delhi. Delhi High Court in 2009 ruled that Section 377 cannot be used to
punish sex between two consenting adults - this violates the right to privacy
and personal liberty under Article 21 of the Constitution.
 Constitutional Validity of section 377
• Section 377 was first challenged by an NGO, Naz Foundation and AIDS
Bhedbhav Virodh Andolan in the Delhi High Court in 2001 as violative of the
Article 14, Article 15 and Article 21 of the Indian Constitution on behalf of
the Lesbians, Gay, Bisexual, Transgenders because no educational,
constitutional rights were there for them, they were not treated like the
ordinary man or woman and thus their conditions were worst.
• Then, by taking into consideration the conditions of the transgenders, in
2014, the Court has made the transgender quota and has categorized them
into the Other Backward Castes(OBC).
• Later Supreme Court in the Right to Privacy judgement also called for equality
and condemned discrimination, stating that the protection of sexual
orientation lies at the core of the fundamental rights and that the rights of
the LGBT population are real and founded on constitutional doctrine.
• In January 2018, a three-member bench of the SC heard the petition by
filed by five people to review the judgement given in Naz Foundation
Case and the SC have finally decriminalized homosexuality by declaring
Section 377 of the Indian Penal Code as unconstitutional. The Apex Court
unanimously ruled that individual autonomy, intimacy and identity are
protected fundamental rights and scrapped the controversial Section 377 of
IPC- a 158-year-old colonial law on consensual gay sex.
• The Supreme Court reversed its own decision and scrapped section 377 of
IPC that criminalized homosexuality and opined that the application of
Section 377 to consensual homosexual sex between adults was
unconstitutional, irrational, indefensible and manifestly arbitrary. But
Section 377 remains in force relating to sex with minors, non-consensual
sexual acts, and bestiality.
Section 377: Sex with animals still an offence, sexual act without consent
punishable.
• The Supreme Court has laid down certain guidelines while partially striking
down Section 377 of the Indian Penal Code. It made it clear that consensual
sex between adults in private space, which is not harmful to women or
children, cannot be denied as it is a matter of individual choice.
• Section 377 will not be applicable to same sex acts between homosexuals,
heterosexuals and lesbians.
• The court however made it clear that sex with animals will remain an
offence.