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 1 [shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
- Whoever, —
- Being a police officer, commits rape—
- Within the limits of the police station to which such police officer is appointed; or
- In the premises of any station house; or
- On a woman in such police officer’s custody or in the custody of a police officer subordinate to such police officer; 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 forces 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 institution, 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 hospital; 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,
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.
Case Laws
- Rape by police constable. – In the case of Vishweshvaran vs State of Tamilnadu 2003,The victim was allegedly raped in a hotel room by a police constable. She could not identify him. No test identification parade was held. The Supreme Court said that the identity was established by the fact that the accused was arrested from the hotel. The room was booked by him. He was not able to explain his whereabouts at the time of the offence. The Court further observed that the Courts have to adopt a different approach in such case. The Court should not get swayed by minor contradictions or discrepancies and defective investigation.
- Rape and conspiracy for rape. In the case of Moijullah vs State of Rajashan 2004, The four accused persons used their affluence and pretensions for friendship and thereby lured innocent schoolgirls and then sexually exploited them and subjected them to rape. Two of them actually committed acts of rape, the third made overtures to one of the victims and the fourth, being a driver, conveyed them to the farmhouse where they were exploited. Their acts were proved by witnesses. Two of them were convicted under section 376. The third and the forth, though committed no act of rape, were convicted under section 376 read with section 120-B (conspiracy), it being not necessary that all co-conspirators should act in a similar manner.
- Unchaste woman.- The Supreme Court has laid down 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. Merely because she is a woman of easy virtue, her evidence cannot be thrown overboard.
In the case of Banti vs State of MP 1992, Where in a prosecution for gang rape, the prosecutrix did not make any complaint to anybody for five days giving false explanation for delay, the doctor found no injury on any part of her body and she was found to be a lady of immoral character or of lax morals, it was held that it was unsafe to rely on her evidence.
The Supreme Court in another case of State of UP vs Om 1999, has held that the mere fact that the prosecutrix was of loose moral character and was used to sexual intercourse and might have gone to the accused herself, were not grounds to disbelieve her statement. Such facts could demolish the case of abduction. But the prosecutrix, being of 10-11 years of age, was not capable of giving consent for abusing her sexually. The conviction of the accused was restored.
In another case of State of UP vs Pappu 2005, it was held by the Supreme Court that there is no ground for acquittal of the accused that the prosecutrix was not having a good character and was a girl of easy virtues.
In Rajesh v. State of Madhya Pradesh 2017, the victim girl of 7 years age was daughter of PW who was related to the appellant (accused). As appellant and his wife were issueless, the appellant had requested PW6 to hand-over the custody of his daughter (victim) so that he could bring her up as his own daughter. There was no problem while up-bringing of child initially, but as she grew young, she was treated with cruelty and subjected to beating and harassment. She was also subjected to repeated rape and sodomy by the appellant Rajesh (her guardian) over a period of time and she ultimately succumbed to her injuries.
Findings of post-mortem and DNA profile completely supported the fact.
The trial Court imposed maximum punishment awardable under Section 302, 376(2)(f) and 377 i.e., death and life-imprisonment.
Section 376 A : Punishment for causing death or resulting in persistent vegetative state of victim.
Whoever, commits an offence punishable under sub-section (l) 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.
Unnao Rape Case
In this case, a minor was raped and murdered by a politician in 2017. Later, an attempt to kill her by a pre-planned car accident was made which led to serious injuries to the victim and death of two relatives. Supreme Court indulged into the matter and said, the victims testimony was unblemished truthful and had been proved to be of sterling quality to arrive at the conclusion that she was sexually assaulted by Kuldeep Sengar.
376-AB. 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
Sexual intercourse by husband upon his wife during separation
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 person in authority.
376C. Sexual Intercourse by a person in authority
Whoever, being-
- In a position of authority or in a fiduciary relationship; or
- A public servant; or
- 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
- On the management of a hospital or being on the staff of a hospital, abuses such position or 6duciary 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 6ve years, but which may extend to ten years, and shall also be liable to fine.
Explanation l.- 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 I to
section 375shall 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.
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.
Nirbhaya Gang Rape Case
In Mukesh & Another v. State (NCT Delhi) & Others 2017, (the case is otherwise known as NIRBHAYA case or the Delhi Gang rape case of December 16, 2012), the appellants were found guilty of committing gang-rape in running bus, in a brutal and barbaric manner. The unnatural sex and assault led to death of helpless victim who was thrown out from the running bus after this ghastly crime. Applying the principle of balancing of aggravating and mitigating circumstances, death sentence was confirmed even though there were few mitigating circumstances.
This rape case 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 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
In Jarnail Singh v. State of Haryana 2013, the prosecutrix was forcibly taken away by appellant and raped by him and his colleges. The appellant’s plea was that the prosecutrix was 15 years of age and she herself had persuaded him to take her away and marry him. The Court found no merit in appellant’s submission as he had allowed her to be raped by three other companions at the same time. The medical report supported the prosecutrix version. The girl was forcibly caught and made to inhale something which made her unconscious and she was also slapped. Held, it was a clear case of gang-rape therefore, appeal had no merit.
376DA. 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:
Provided further that any fine imposed under this section shall be paid to the victim.
376DB. 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.
Punishment for repeat offenders.
376E. Whoever has been previously convicted of an offence punishable under section 376 or section 376A or section 3760 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.’.
Conclusion: Need of the hour :
Sexual crime is a blot on the face of any civilised society and is universally condemned. It reflects the mindset of a patriarchal dominant era. To avoid these crimes, the reformatory attitude of society towards victims is necessary and the task can only be accomplished when it is shared with all the wings of criminal justice system. The need of the hour is to raise awareness among people so that the crimes do not proliferate.
Marital rape should be criminalized and strict actions should be taken in this regard. Rehabilitation should be carried out so that the victim can recover physically, psychologically and socially. Decriminalization of consensual sexual intercourse among the LGBT individuals may lead to more rape cases.
Punishment for rape for the Rape committed under section 375:
- 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 1 [shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
- Whoever, —
- Being a police officer, commits rape—
- Within the limits of the police station to which such police officer is appointed; or
- In the premises of any station house; or
- On a woman in such police officer’s custody or in the custody of a police officer subordinate to such police officer; 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 forces 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 institution, 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 hospital; 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
- omitted by act 22v of 2018*
- 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,
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.
Case Laws
- Rape by police constable. – In the case of Vishweshvaran vs State of Tamilnadu 2003,The victim was allegedly raped in a hotel room by a police constable. She could not identify him. No test identification parade was held. The Supreme Court said that the identity was established by the fact that the accused was arrested from the hotel. The room was booked by him. He was not able to explain his whereabouts at the time of the offence. The Court further observed that the Courts have to adopt a different approach in such case. The Court should not get swayed by minor contradictions or discrepancies and defective investigation.
- Rape and conspiracy for rape. In the case of Moijullah vs State of Rajashan 2004, The four accused persons used their affluence and pretensions for friendship and thereby lured innocent schoolgirls and then sexually exploited them and subjected them to rape. Two of them actually committed acts of rape, the third made overtures to one of the victims and the fourth, being a driver, conveyed them to the farmhouse where they were exploited. Their acts were proved by witnesses. Two of them were convicted under section 376. The third and the forth, though committed no act of rape, were convicted under section 376 read with section 120-B (conspiracy), it being not necessary that all co-conspirators should act in a similar manner.
- Unchaste woman.- The Supreme Court has laid down 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. Merely because she is a woman of easy virtue, her evidence cannot be thrown overboard.
In the case of Banti vs State of MP 1992, Where in a prosecution for gang rape, the prosecutrix did not make any complaint to anybody for five days giving false explanation for delay, the doctor found no injury on any part of her body and she was found to be a lady of immoral character or of lax morals, it was held that it was unsafe to rely on her evidence.
The Supreme Court in another case of State of UP vs Om 1999, has held that the mere fact that the prosecutrix was of loose moral character and was used to sexual intercourse and might have gone to the accused herself, were not grounds to disbelieve her statement. Such facts could demolish the case of abduction. But the prosecutrix, being of 10-11 years of age, was not capable of giving consent for abusing her sexually. The conviction of the accused was restored.
In another case of State of UP vs Pappu 2005, it was held by the Supreme Court that there is no ground for acquittal of the accused that the prosecutrix was not having a good character and was a girl of easy virtues.
In Rajesh v. State of Madhya Pradesh 2017, the victim girl of 7 years age was daughter of PW who was related to the appellant (accused). As appellant and his wife were issueless, the appellant had requested PW6 to hand-over the custody of his daughter (victim) so that he could bring her up as his own daughter. There was no problem while up-bringing of child initially, but as she grew young, she was treated with cruelty and subjected to beating and harassment. She was also subjected to repeated rape and sodomy by the appellant Rajesh (her guardian) over a period of time and she ultimately succumbed to her injuries.
Findings of post-mortem and DNA profile completely supported the fact.
The trial Court imposed maximum punishment awardable under Section 302, 376(2)(f) and 377 i.e., death and life-imprisonment.
Section 376 A : Punishment for causing death or resulting in persistent vegetative state of victim.
Whoever, commits an offence punishable under sub-section (l) 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.
Unnao Rape Case
In this case, a minor was raped and murdered by a politician in 2017. Later, an attempt to kill her by a pre-planned car accident was made which led to serious injuries to the victim and death of two relatives. Supreme Court indulged into the matter and said, the victims testimony was unblemished truthful and had been proved to be of sterling quality to arrive at the conclusion that she was sexually assaulted by Kuldeep Sengar.
376-AB. 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
Sexual intercourse by husband upon his wife during separation
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 person in authority.
376C. Sexual Intercourse by a person in authority
Whoever, being-
- In a position of authority or in a fiduciary relationship; or
- A public servant; or
- 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
- On the management of a hospital or being on the staff of a hospital, abuses such position or 6duciary 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 6ve years, but which may extend to ten years, and shall also be liable to fine.
Explanation l.- 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 I to
section 375shall 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.
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.
Nirbhaya Gang Rape Case
In Mukesh & Another v. State (NCT Delhi) & Others 2017, (the case is otherwise known as NIRBHAYA case or the Delhi Gang rape case of December 16, 2012), the appellants were found guilty of committing gang-rape in running bus, in a brutal and barbaric manner. The unnatural sex and assault led to death of helpless victim who was thrown out from the running bus after this ghastly crime. Applying the principle of balancing of aggravating and mitigating circumstances, death sentence was confirmed even though there were few mitigating circumstances.
This rape case 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 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
In Jarnail Singh v. State of Haryana 2013, the prosecutrix was forcibly taken away by appellant and raped by him and his colleges. The appellant’s plea was that the prosecutrix was 15 years of age and she herself had persuaded him to take her away and marry him. The Court found no merit in appellant’s submission as he had allowed her to be raped by three other companions at the same time. The medical report supported the prosecutrix version. The girl was forcibly caught and made to inhale something which made her unconscious and she was also slapped. Held, it was a clear case of gang-rape therefore, appeal had no merit.
376DA. 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:
Provided further that any fine imposed under this section shall be paid to the victim.
376DB. 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.
Punishment for repeat offenders.
376E. Whoever has been previously convicted of an offence punishable under section 376 or section 376A or section 3760 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.’.
Conclusion: Need of the hour :
Sexual crime is a blot on the face of any civilised society and is universally condemned. It reflects the mindset of a patriarchal dominant era. To avoid these crimes, the reformatory attitude of society towards victims is necessary and the task can only be accomplished when it is shared with all the wings of criminal justice system. The need of the hour is to raise awareness among people so that the crimes do not proliferate.
Marital rape should be criminalized and strict actions should be taken in this regard. Rehabilitation should be carried out so that the victim can recover physically, psychologically and socially. Decriminalization of consensual sexual intercourse among the LGBT individuals may lead to more rape cases.
