Abstract
There are many offences against the body of a human and there are many offences against women. An offence which comes under both of these categories is the offence of rape. Rape is an offence that not only harms a woman physically but also outrages the modesty “of a woman”. The term ‘rape’ has derived its origin from the language of Latin and more specifically from the word ‘rapere’ which means to seize or abduct. Rape is seen and considered as one of the most heinous and abominable offences. The country of India derives its laws relating to the offence of rape from the English Common Law and also from the Indian Penal Code, 1860. The jurist of Sir Matthew Hale commented on the rape as ‘an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent’. It is evident that the victim is presumed to be lying, and this presumption was the reason why the trial courts were focused on “proving the credit of the victim rather than proving the guilt of the accused”. The laws relating to the offence of rape strengthened over the years with the happening of many landmark cases and so did the awareness regarding these laws. This research paper analyzes the different laws available to the victim in different acts and statues and the different cases in which the amendments were made.
Key words- offence, modesty, rape, presumption, amendments
Introduction
“Justice Krishna Iyer in the case of Rafiq v. State of Uttar Pradesh, gave a statement which states, ‘a murderer kills the body whereas a rapist kills the soul’.” The offence of rape is deemed to be more serious and graver than the offence of murder or the offence of culpable homicide. The offence of rape is one of the most common crimes in the country of India. Every day nearly 90 rape cases are reported in India. There are more than 1,00,00 pending rape cases in the Indian Courts and the conviction rate in rape cases in only 32%. In the year 2021, a total of 31,677 rape cases were filed in India which leads to an average registration of 87 cases per day. The State of Rajasthan has the highest number of rape cases in the nation then followed by Madhya Pradesh and Uttar Pradesh. According to NCRB’s report in 2021, there has been an increase of 19.34% in the number of rape cases. In these cases, the cases in which the offence is committed against minors constitute nearly 10% of the total cases. Approximately 64% of the cases include the cases against the age group of 18-30. With the escalation in the number of rape cases, there have been many amendments in the laws regarding to the offence of rape. Cases like the Mathura rape case, Nirbhaya rape case, the Kathua rape case and the Unnao rape case have majorly contributed in the making the amendments of the laws relating to the offence of rape. The awareness regarding the laws has significantly increased over the years giving accessibility and courage to the victims and their families to approach the judicial system of the country in search for the well-deserved justice for their suffering.
Research Methodology
This research paper collected its data from various articles, journal articles and various secondary sources. This research paper also utilized the required laws, acts and statues to interpret the mentioned case laws. This research paper also collected its data from secondary sources to provide the required details about the ancient times.
Literature Review
- Anurag Soni v. State of Chattisgarh
The victim was in a romantic relationship with the accused and he had proposed marriage, which her family knew about. Despite her refusal, the accused tried to have sexual relations with her under the false pretense of marriage. The Supreme Court ruled that her consent was invalid due to the misconception of fact, and convicted the accused under Section 375 of the Indian Penal Code, 1860.
- Maya Tyagi, Meerut v. Ito, Baraut
The victim, her husband, and two friends were traveling by car when they had a flat tire near Baghpat Police Station. The husband and friends went to fix the tire, but a police officer molested the victim. When the husband found out, he slapped the officer. The officer returned with ten policemen, shot the husband and friends, and stripped and paraded the victim. She was attacked with a lathi when she resisted and later tortured at the police station. The policemen falsely accused her of being a dacoit’s mistress and tried to justify their actions during the judicial inquiry.
- Priya Patel v. State of Madhya Pradesh
In this instance, a significant and pivotal issue was brought up regarding the prosecution of a woman who facilitates the act of rape. The victim, after meeting the accused at the railway station, was raped in his house while the accused’s wife witnessed the act and did not intervene. The High Court of Madhya Pradesh found the appellant guilty under Section 376(2) of the Indian Penal Code for facilitating the offence of gang rape.
- Vishaka v. State of Rajasthan & Ors.
This particular case is one of the most notable instances in the nation as it revolved around safeguarding women from sexual harassment in the workplace. The victim, a social worker, was allegedly gang-raped while attempting to prevent a child marriage. Despite the complaint being filed, it was not adequately pursued, and the accused were ultimately acquitted due to lack of evidence. “The Court ruled that sexual harassment of women at work violates a woman’s rights under Articles 14, 15, 19, and 21 of the Indian Constitution. This case led to the formulation of workplace guidelines and the passing of the Prevention of Sexual Misconduct at Work Act, 2013.”
- State of Maharashtra v. Prakash
The victim and her husband traveled to her village for a festival. The accused, a police officer and a businessman, called them. The victim’s husband was assaulted, and she was sexually assaulted by both men. The accused claimed there was no resistance from the victim. The Bombay High Court ruled that the accused instilled fear in the victim, forcing her to comply. The consent was obtained by threatening the victim’s husband’s life, as per Section 375 of the Indian Penal Code, 1860.
Rape Laws In Ancient India
Ancient or modern age, the act of rape is always considered as a crime and the gravity of punishment given to this offence is very high. The offence of rape was considered to be a very reprehensible, atrocious and disgraceful act. The laws relating to the punishment of this offence were very stringent and they provided very rigorous and severe punishment and penalty on the offender. The caste of the victim and the offender played a significant role in determining the punishment of the offender. The text of Manusmriti laid down capital punishment to the offender for ravishing a woman. The confiscation of property has also been stipulated for committing the offence of rape against minors and the women of higher castes. Sexual offences, in the ancient times, were divided into two categories namely sahasa or rape and stri sangraha or adultery. In the eight forms of Hindu marriage, the most atrocious form of marriage is known as paishcha. In this form, the man seduces the woman and engages in sexual activity while she is sleeping or is intoxicated or takes advantage if she is mentally impaired mostly in the time of the night. The victim and her parents, out of shame and embarrassment, get the victim married to her offender. This act resembles the act of rape, and this form of marriage is, evidently, one of the unapproved forms of marriage.
Rape Laws In Modern India
“The offence of rape has been dealt under Section 375 of the Indian Penal Code, 1860. The different essentials and the punishment for committing the offence have been covered in the Indian Penal Code, 1860.” When the offence of rape is committed the offender is punishable under Section 376 of the Indian Penal Code, 1860”. Formerly, it was considered as an offence of rape only when there was a penial-vaginal penetration or when the penis was inserted into the vagina, anus, urethra, or the mouth of the woman. “”In the landmark case of Mukesh & Anr. v. State for NCT of Delhi”, a 23-year-old physiotherapist was barbarically and ruthlessly raped by six males which included five men and a minor while they were on a moving bus.” The attackers also pulled out the intestines and organs of the victim with an iron rod. The victim was not only gang raped but also was thrown out of the bus naked. The victim died despite all the efforts made to save her life. The Court sentenced imprisonment to the five majors and the juvenile was sent to the juvenile facility. After this proceeding, the then Chief Justice of India, J S Verma set up a committee under his chairmanship to analyze the criminal laws and to put forward the plausible and imaginable amendments that can be made to amplify the punishment of the offenders in the cases where the modesty of a woman is outraged and there is assault or offence of maximal nature and brutality against women. The recommendations and suggestions made by “the Justice Verma Committee have been passed as the amendments in “the Indian Penal Code, 1860, the Indian Evidence Act, 1872, and the Protection of Children from Sexual Offences Act, 2012” in relation to laws related to sexual laws.” These amendments broadened the purview and scope of “the definition of rape and enhanced the punishment of the offenders especially in the cases where the offender the caused the death of the victim or has left the victim in a perpetual vegetative state”. These amendments also provide for various now offences to make laws more rigid and strict.
The amendments made by the recommendations widened the scope of Section 375 of the Indian Penal Code. Section 375 of the Indian Penal Code, 1860 defines the offence of rape as”:
- “When there is a penetration of a penis by a man or men “into the vagina, urethra, anus, and mouth of a woman or makes her to do so with him or any other person.”
- “When there is any insertion or penetration of an object or a body part, which is not the penis of the person doing so, by a man or men into the vagina, urethra, anus, and mouth of a woman or makes her to do so with him or any other person.”
- “When the woman was manipulated to cause the penetration into her vagina, urethra, anus, mouth, or any other part of her body or makes her to do so with him or any other person.”
- “When there is an application by a man or men of his mouth to the vagina, urethra, anus, of the woman.””
The situations under which a man is liable for the offence of rape are:
- Firstly, the act is against the will of the woman that means that the act was done under the reasoning of the mind.
- Secondly, the act was done without the consent of the woman, and this means that there was neither verbal communication with words nor any non-verbal communication like gestures.
- Thirdly, when the consent was obtained by putting the person in whom the woman has a fear of hurt of death or the person in whom the woman has an interest.
- Fourthly, when the woman gives the consent in the assumption that the man is her husband, and the man is aware of the fact that the woman has given consent not to him but to her husband.
- Fifthly, when the woman, while giving consent, does not know the true nature or consequences of her consent due to the state of intoxication or unsoundness of mind or through the administration of the offender personally or any other benumbing insalubrious substance.
- Sixthly, with or without the consent when the woman is under the age of 18.
- Seventhly, when the woman is unable to communicate her consent.”
“It’s crucial to understand that lack of physical resistance from a woman does not imply consent to sexual intercourse or activity.” While giving the judgment of case which constitutes the offence of rape, the moral character of the victim must not be taken into account as the injury, hurt and harm she has gone through are the determining factors of the punishment of the offender.
Custodial Rape
Custodial rape is defined as the offence of rape committed when the victim is in the custody of a man or men who might take advantage of their high position or rank or misuse their power to exploit women. An offence of rape is considered to be the offence of a custodial rape when the victim is under the custody of a man or men who is/are a
- Police officer(s)
- Public servant(s)
- “Belonging to the management or staff of a jail, remand home or any other place of custody”
- Belonging to the management or staff of a hospital
In the cases of custodial rape, the offender is held liable under Section 376 of the Indian Penal Code, and the punishment for this offense is imprisonment that can extend from 10 years to life imprisonment along with a fine. “In the case of Tuka Ram & Anr. v. State of Maharashtra, a tribal girl, aged sixteen, was raped by two policemen at Desai Gunj Police Station in Maharashtra. The Session Court ruled in favor of the defendants, stating that the victim’s consent was voluntary due to her sexual history.” However, “the Bombay High Court overturned the decision, sentencing the offenders to imprisonment. The Bombay High Court ruled that acquiescence out of fear induced by severe threats cannot be considered as consent or willingness for sexual intercourse. The court stressed the distinction between consent and passive submission.”” The Supreme Court later acquitted the offenders, claiming that the victim’s lack of resistance and sexual history suggested she may have provoked the cops. This case raised concerns about the concept of consent. The judgment of this case led to many amendments in laws relating to the offence of rape. These amendments include
- “Section 114(A) was inserted in the Indian Evidence Act, 1872 that states that in a prosecution for the offense of rape, when the act of sexual intercourse committed by the accused has been proven, and the victim states that she did not consent then the Court shall presume that she did not consent as a rebuttable presumption of law.””
- “Section 376 of the Indian Penal Code, 1860 has been amended in the form of addition of Sections 376(A), 376(B), 376(C) and 376(D) which dealt with the punishment of the offender.””
- This case introduced the concept of ‘custodial rape’ and the provision regarding the same was added under “Section 376(2) of the Indian Penal Code and” it dealt with the offence of “rape that takes place when the victim is in the custody of the state.”
- This case also introduced Section 228A in the Indian Penal Code, 1860 and this section prohibits the publication of the identity of the victims of the offence of rape.
The Mathura case also led to many reforms in the laws related to the offence of rape in this nation through the Criminal Law (Second Amendment) Act, 1983.
Rape of a minor
The offence of rape of a minor is not only dealt by the Indian Penal Code, 1860 but also by the Protection of Children from Sexual Offences Act, 2012. Chapter II of the Protection of Children from Sexual Offences Act, 2012 deals with the Sexual Offences against Children. Part A of this chapter deals with the Penetrative Sexual Assault and the punishment for committing the same. “Section 3 of the Protection of Children from Sexual Offences Act, 2012” defines the term ‘penetrative sexual assault’ as
- When an individual or individuals insert their penis into the vagina, urethra, anus, or mouth of a child, or compel the child to engage in such acts with another person.
- When a man or men insert an object or a part of the body, that is not his penis, into the vagina, urethra, anus or mouth of the child or makes the child do so with another person.”
- When he manipulates any part of the child’s body that is used to penetrate the vagina, urethra, anus, or any other part of the child’s body, or compels the child to do so with themselves or another individual.”
- When the man applies his mouth to the vagina, urethra, penis, or anus of the child or makes the child to do so such person or another person.””
Section 4 of the Protection of Children from Sexual Offences Act, 2012 addresses the punishment for the rape of a minor, with a minimum imprisonment of seven years and a possible life sentence, as well as a fine. Section 5 of the same act deals with custodial rape of a minor. In the case of Harpal Singh & Ors v. State of Himachal Pradesh, a sixteen-year-old victim was deceived by the accused into visiting her sick aunt in the village. The accused then locked her in a room with two others and raped her. Despite being rescued by her family, they chose to remain silent. a sixteen-year-old victim was deceived into visiting her sick aunt in the village, then locked in a room with two others and raped. Despite being rescued by her family, they chose to remain silent. The accused later claimed that the victim had agreed to the sexual intercourse. The Supreme Court held that the victim was fifteen-years-old when the incident took place, and as she was under 16 years old, her consent was not valid. Therefore, the offenders were held liable “for rape under Section 376 of the Indian Penal Code, 1860.”
Concluding Remarks and Suggestions
The offence of rape is deemed to be most heinous and barbaric crimes committed against women and this crime is worse than murder. When this offence is committed it not only outrages the modesty of a woman but also harms the victim physically and mentally. Rape is an infringement of the liberty and rights of a woman. Out of all crimes committed against the human body, the offence of rape is the one that leaves the victim feeling the most violated. The offence of “rape is the fourth most common crime against women in” the country of India. In the year 2019, one rape case was reported every 16 minutes in country of India. ‘It is ironic that crime rates against women are higher in a nation where nearly 80% of the population worships goddesses’ and where the women in the nation are held at high regard. According to the statistics in the year 2021, in nearly 96.5% of the cases, the offender was known to the victim i.e., the offence of rape was committed by friends, family, partners on the pretext of marriage, husbands who had been separated, employers or any known person. Though there are many laws and acts in enactment and implementation, there has been an exponential rise in the number of rapes committed over the years. Though the laws have been made more accessible to the victims, the number of that are being reported are less which is the evidence of the concealment of the issue by the victims and their families under either the fear of the offender or the fear of embarrassment and humiliation. The victims must be encouraged to step up and report their cases so that the offender gets the deserved punishment, and the victim gets the deserved justice for their suffering. When a victim comes forward, it gives courage to the other victims to come forward and speak up about their suffering as well.
By,
Karri Sahiti Ananya Reddy,
Symbiosis Law School, Hyderabad.