Rape and Indian Laws

Rape means an unlawful intercourse done by a man with a woman without her valid Consent-Sec.375,IPC

 The dictionary meaning of word rape is “the ravishing or violation of a woman.” The rape victim i.e. a woman as woman cannot commit rape due to biological reasons. She is traumatized after the event; it is very difficult for a woman to come out of this trauma. Rape in India is a cognizable offence. There are many provisions in various Acts. The word rape is legally defined u/s 375 of Indian Penal Code, 1860. It defines the rape and also prescribes its punishment. Whenever a man penetrates or does sexual intercourse with a woman without her consent or will it amounts to rape.

Penetration here means that only a slightest of the touch of penis to vagina amounts to rape, unruptured hymen of woman does not prove that rape was not committed. There are exceptions to it also i.e. when a man does sexual intercourse with his wife who is above 15 years of age. The rape law under Indian Penal Code had gone through a lot of amendments. In 1983, amendment was made and S. 376(2) i.e. Custodial rape, S. 376(A) i.e. marital rape & S. 376(B to D) i.e. Sexual Intercourse not amounting to rape were added.

U/s 228A IPC, No person can disclose the name of the rape victim and if anybody discloses the name, he shall be punished with either description for a term which may extend to two years and shall also be liable for fine.

U/s 114-A of Indian Evidence Act, presumption can be made as to the absence of consent in certain prosecutions for rape.

U/s 53(1) of Code of Criminal Procedure, When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

U/s 164A of Code of Criminal Procedure, provisions for medical examination of rape victim are given.

U/s 327(2) of Code of Criminal Procedure, there should be in camera trial for all rape victims.

The Judiciary in India is burdened with a lot of work and therefore judgment of the rape cases comes very late. Sometimes it comes so late that either of the parties had died. So, there should be speedy trials in rape cases so that the victim gets justice as it is rightly stated that “Justice delayed is justice denied.”

As every coin has two sides, in this case also there are two sides. Many a times girls also make fake complaints just to ruin the life of a boy, sometimes the parents of girl compels her to file a complaint against the boy she loves, as the law shows a lot of sympathy towards the girl. The accused is left with nothing, when the complaint is made his life is ruined irrespective of the fact that he was proved guilty or not. So, in my views there must come an amendment which equalizes the burden of proof on both the sides and the law works smoothly. It should be such that is contradicts the statement i.e. “Law is there for vigilant.”

AMENDMENTS TO RAPE LAWS IN 2013

Section 370 IPC has been substituted with new sections, 370 and 370A which deals with trafficking of person for exploitation. If a person (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by using threats, or force, or coercion, or abduction, or fraud, or deception, or by abuse of power, or inducement for exploitation including prostitution, slavery, forced organ removal, etc. will be punished with imprisonment ranging from at least 7 years to imprisonment for the remainder of that person’s natural life depending on the number or category of persons trafficked.Employment of a trafficked person will attract penal provision as well.

The most important change that has been made is the change in definition of rape under IPC. The word rape has been replaced with sexual assault in Section 375, and have added penetrations other than penile penetration an offence. The definition is broadly worded and gender neutral in some aspect, with acts like penetration of penis, or any object or any part of body to any extent, into the vagina, mouth, urethra or anus of another person or making another person do so, apply of mouth or touching private parts constitutes the offence of sexual assault. The section has also clarified that penetration means "penetration to any extent", and lack of physical resistance is immaterial for constituting an offence. Except in certain aggravated situation the punishment will be imprisonment not less than seven years but which may extend to imprisonment for life, and shall also be liable to fine. In aggravated situations, punishment will be rigorous imprisonment 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.

A new section, 376A has been added which states that if a person committing the offence of sexual assault, "inflicts an injury which causes the death of the person or causes the person 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 the remainder of that person’s natural life, or with death."

 In case of "gang rape", persons involved regardless of their gender shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life and shall pay compensation to the victim which shall be reasonable to meet the medical expenses and rehabilitation of the victim.

The age of consent in India has been increased to 18 years, which means any sexual activity irrespective of presence of consent with a woman below the age of 18 will constitute statutory rape.

Certain changes has been introduced in the CrPC and Evidence Act, like the recording of statement of the victim, more friendly and easy, character of the victim is irrelevant, presumption of no consent where sexual intercourse is proved and the victim states in the court that there has been no consent, etc.

Sexual offence act, 2003 states as follows:-

Rape

(1) A person (A) commits an offence if-

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents .

With compare to this law, law of India under penal code not cover the penetration of mouth and if such happened then that not amount to rape under our present law above all in India it is observe by our Hon’ble courts that in case of rape if any woman help to commit such rape she will be not charge for the offence of rape as she help to commit the rape but in England it happens and their punishment are also more than us so any one before committing this must think and in the mind of people there is some fear about law and it’s punishment.

Like every other country, laws relating to rape do exist in India. However, justice is rarely achieved. In most cases, rape victims themselves hesitate to make a complaint due to the stigma attached to it in society. Sometimes, even if a complaint is made, the offender gets away due to wide spread ignorance of the laws relating to the offense.

A man is said to commit “rape” if he has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :-

1. Against her will.

2. Without her consent.

3. 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.

4. 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.

5. 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.

6. With or without her consent, when she is under sixteen years of age.

Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

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

 SPECIAL CASES OF RAPE

Rape knowing the woman to be pregnant , gang rape, and custodial rape definitions, Specific (and sometimes increased) Punishment in some of these cases Shift of burden of proof to defendant from the victim in some of these cases. (Section 376 subsection 2 (a-g) of Indian Penal Code)

1)Rape of a woman who is under twelve years of age [Sec.376 (2) (f)]

Punishment

Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Issues

Unfortunately other than the increased minimum punishment from 7 years to 10 years, no other special concession is given to Child Rape given the increased trauma for the girl. Since even the minimum punishment can be reduced by the judges, much needs to be done in this area.

2) Rape of a woman, knowing her to be pregnant (Sec.376 Subsection 2- e)

Punishment

Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Exemption from burden of proof if the victim states in court that she did not consent, then the court shall presume that she did not consent and the burden of proving consent shall shift to the accused

3). Gang Rape ( Sec.376 Subsection 2- g)

“Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. ”

Thus even if five men force a women into having sexual intercourse with only one of them, the remaining four will also be considered to have committed rape under this law. Punishment

Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Exemption from burden of proof :

If the victim states in court that she did not consent, then the court shall presume that she did not consent and the burden of proving consent shall shift to the accused.

4). Custodial Rape: (Sec.376 Subsection 2 a, b, c , d):

Rape committed on a woman in their or their subordinate’s custody by

a) police officer

(i) within the limits of the police station to which he is appointed; or

(ii) in the premises of any station house whether or not situated in the police station to, which he is appointed; or

(iii) on a woman in his custody or in the custody of a police officer subordinate to him;

b) public servant

c) management or the staff of a jail, remand home or other place of custody or a women’s or children’s institution

d) management or on the staff of a hospital

Punishment

Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine .

Case Laws:

In State of Punjab vs. Gurmit Singh , the Supreme Court has advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the Court should not describe her to be of loose character.

The Supreme Court has in the case of State of Maharashtra Vs. Madhukar N. Mardikar , held that “the unchastity of a woman does not make her 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 her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard.”

In Delhi Domestic Working Women v. Union of India , the Apex Court laid down the following broad guidelines:

• The complainants of sexual assault cases should be provided with legal representation i.e. they should be provided an advocate who could help her properly.

• Legal assistance will have to be provided at the police station since victim of sexual assault might very well be in a distressed state upon arrival at the police station and guidance of a lawyer at that stage is very necessary.

• The police should be under duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.

• A list of advocates who deal in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.

• In all rape trials anonymity of victim must be maintained, as far as necessary.

• A “Criminal Injuries Compensation Board” should be established.

• Interim compensation should be given to rape victim even if the case is still going on in the court.

• Medical help should be provided and woman should be allowed to abort the child if she becomes pregnant due to the incidence.

• Compensation should be provided to rape victim to rehabilitate herself.

The National Commission for Women has identified nine areas for review . These are:

1. Review of the definition of rape

2. Reduction of procedural delays

3.Uniformity in age of consent under sections 375 and 376 of Indian Penal Code, 1860, to bring it in conformity with the Child Marriage Restraint Act, 1869

4. Whether exception to section 375 should be deleted

5. Whether section 155 clause 4 of the Indian Evidence Act 1872 needs to be amended or deleted.

6. Whether statutory provisions are needed for compensation to the rape victim

7. Whether provisions for counseling legal aid should be made mandatory under laws.

8. Death penalty to persons convicted for rape

9. Recommendation for enhancement of punishment in cases where the accused, with the knowledge of suffering from HIV infection/AIDS, infects the victim as a result of rape.

Conclusion:

The courts and the legislature consistently making  changes to make Rape laws effective. The sentence of punishment, which normally ranges from one to ten years, where on an average most convicts get away with three to four years of rigorous imprisonment with a very small fine; and in some cases, where the accused is resourceful or influential- may even expiate by paying huge amounts of money and get exculpated. The courts have to comprehend the fact that these conscienceless criminals- who sometimes even beat and torture their victims- who even include small children, are not going to be deterred or ennobled by such a small time of imprisonment. Therefore, in the best interest of justice and the society, these criminals should be sentenced to life imprisonment.