Our Best Criminal Advocates in Chandigarh for Rape Cases (Section 375/ 376/ 376A, IPC) have been dedicating their sweat and blood to help Rape victims meet justice. At the same time, we have our Best Advocates in Chandigarh who leave no stone unturned in defending innocent men falsely implicated in Rape cases – maliciously and vindictively to harass, blackmail and extort huge chunks of money from.
Amongst all committed crimes against humanity, rape is the most heinous. Yet, shamefully, an increasingly large no. of Rape crimes are still being reported. Despite deterring laws brought in by amendments to put in place preventive measures for furtherance of protection of women, the condition does not seem to have improved for good. Any Good Lawyer in Chandigarh for rape cases can inform you about the growing instances in our very own ‘city beautiful’. The reason is not lack of laws or of amendments, but of – bankruptcy of knowledge, awareness and recognition of laws, punishment and rights of one another. Many people convicted of rape crimes are not uneducated but are unaware of consequences and punishment. This article is an attempt to fulfil that vacuum.
MEANING OF RAPE IN CONTEXT OF INDIAN LAW
The word rape is derived from a Latin word ‘rapio’ which means ‘to seize’. Section 375 defines rape & section 376 prescribes punishment for rape. In India, the offence of rape is defined under Section 375 and broadly means sexual intercourse by a man with woman (who isn’t his lawfully wedded wife) against her will and without her consent.
INCREASED SCOPE OF MEANING OF RAPE TO INCLUDE SEXUAL ASSAULT
After the unfortunate and horrendous act of December 2012 – Nirbhaya Tragedy which made the whole country cry tears of sorrow and shame, a committee was appointed to present a report mentioning ways through which further security can be provided for women folk in India. After the submission of report by the committee – Criminal Law (Amendment) Act 2013 was passed in by the parliament to create further deterrence against crimes of rape, sexual harassment, voyeurism, Acid attack, Attempt to acid attack and stalking – and to deal with such crimes more stringently than ever.
CHANGES BROUGHT IN AFTER NIRBHAYA TRAJEDY
An important change has been brought in the definition of rape under Indian Penal Code. The Ordinance initially aimed at changing the word ‘Rape’ as used in the section 375 – to sexual assault, however, the word ‘rape’ has been retained. But the ambit extended than vaginal penetration to include acts in addition to it. The new definition of ‘sexual assault’ is broadly worded and includes acts of touching private parts , ‘penetration by penis’, or by any object, or by any part of body and to any extent – into mouth, urethra, vagina or anus of another person or making another person to do so constitutes the offence of sexual assault.
By bringing in words – “penetration to any extent”, the section has provided for a much clearer clarification, thereby leaving no air for ambiguity. Also ‘lack of physical resistance’ is considered immaterial in constituting an offence of rape.
UPDATED PUNISHMENT OF RAPE IN INDIAN LAW
– POST NIRBHAYA TRAJEDY
For an offense of Rape, a minimum punishment of 7 years has to be awarded which may extend to life imprisonment – i.e. a person will have to serve the entirety of his human life confined in prison. Along with this, it has been laid out that offenders shall be penalized with fine to amounts as is necessary to reasonably rehabilitate the victim in the society. It has also been observed by legislature that in aggravated cases of rape crimes, wherein the act is aggravated to be horrendous and brutal, the offenders shall be severely sentenced for not less than 10 years and it may extend till life depending upon the gravity of the crime. By the addition of section 376A, light has been drawn on heinous cases of crime where injuries of such nature are inflicted on victim’s person so as to cause death or induce lifelong misery of remaining in vegetative state. The section maintains that a punishment of no less than 20 years which may extend to life shall be given. Similarly for crimes of ‘gang rape’ the section emphasizes on punishing with a minimum of 20 years which may extend to life along with such amounts of fine as is deemed appropriate by the court to rehabilitate the victim in the society – to all those involved in the act, regardless of their gender.
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.
JURISPRUDENCE OF RAPE POST NIRBHAYA TRAJEDY
Besides, two major changes have been introduced in the Evidence Act and the Criminal Procedure Code CrPC regarding the process of recording victim’s statement to make it more victim oriented and sympathetic.
a. The ‘character of victim’ which earlier used to be considered as a strong point of consideration by the courts and the investigating officer, has now been rendered totally irrelevant.
b. Presumption of ‘no consent’ – another material change has been brought, wherein, court has to presume that there has been no consent if the victim states so in the court and otherwise intercourse is proved.
The new altercations have changed the scenario of rape related laws – it’s hard to say if we’ve succeeded in controlling rape crime, but this change has brought in winds of fire for men folk. It has got easier to implicate innocent men under false rape charges and if not for the support of best criminal advocates in town, innocent men might find it extremely hard to sail to the shore – and even if one does, the trauma and misery one has to go through is unfathomable. On the positive side, these laws have sent a strong wave of deterrence and can be counted as the first step towards effectively strengthening the rights of women.
STIPULATED CONDITIONS IN INDIAN LAW TO CONSTITUTE AN OFFENSE OF RAPE
The crime of rape is committed when a man has sexual intercourse with a woman in circumstances falling under any of the following six descriptions:
1. Against the will of the other person.
A man is considered to be guilty of rape if he commits sexual intercourse with a woman against her will, i.e. the act must have been done against her opposition to it.
In State of Punjab v. Gurmit Singh AIR 1996 SC 1393 the 3 accused after abducting prosecutrix subjected her to sexual intercourse, forcibly and against her will which amounted to rape within Sec. 375(l) of IPC and the Apex court laid down following guidelines for trial in such cases:
a. Delayed in lodging F.I.R is not material when properly explained.
b. Testimony of the victim is vital in cases of sexual assault unless there are compelling circumstances which necessitate to corroborate her statement
c. Trial should be on camera and invariably by a lady judge wherever possible
d. Court must restrain making observations that probably prosecutrix is of a loose character.
e. Court is under an obligation to see that prosecutrix is not unnecessarily harassed.
2. Without other person’s consent:
a. Consent obtained by misrepresentation fraud or under mistake is no consent. It has to be proved that consent was obtained freely. In Queen v. Flattery 1877 QBD 410 the girl had consent to surgical operation & not for sexual intercourse and this fact was known to doctor. Thus accused was liable for committing offence of rape & court ruled out defense of consent since it was under misconception of fact.
b. Consent is of paramount importance to determine the liability of a person for offence of rape. Consent has been distinguished from submission and explained in case of Rao Harnam Singh, Sheoji Singh v. State, AIR 1958, Punjab 123, wherein the prosecutrix under pressure of her husband surrendered her chastity to three accused. The court held accused liable for offence of rape and stated that a helpless resignation cannot be deemed to be consent under law.
Whether sex with a promise of marriage is rape?
Case Law:- Pradeep Kumar Verma v. State of Bihar 2007, IV GLJ 4333 SC, It has been held by Supreme court that sex promise that docs not end in marriage is not rape’ The bench however ruled that women’s consent is vitiated if the man makes representation of marriage deliberately to illicit her for an intercourse.
Rape of a woman of Easy Virtue – It has been observed that consent contemplated by Sec. 375 is at the particular time for the particular act. Case Law: State of Maharashtra v. M.N Mardickar AIR 1991 SC 207. In this case court laid down that the unchastely of a woman does not make her open to any person to violate her and she is equally entitled to protection of law.
c. Consent in cases concerning Transmission of Sexual Diseases:
There have been varying judgments regarding this:
Case Law: R v. Clarence (1888) 22 QBD 23, the husband who was suffering from gonorrhea had a sexual intercourse with his wife and transmitted her disease. The court said that the consent was not obtained by any fraud, the wife was aware of nature of act i.e. sexual intercourse.
Whereas, in the case of R v. Dica (2004) 3 ALLER 593, the decision made in the case of R v. Clarence was overruled. The defendant knowing to be HIV infected transmitted disease through contextual intercourse to 2 ladies who did not know or consent to risk of infection. The judge straight forward rejected defendant’s plea of consent.
3. With the other person’s consent when such consent has been obtained by putting such other person or any person in whom such other person is interested, in fear of death or hurt.
By criminal Law (Amendment) 1983 the words “or any person in whom she is interested” were inserted after “putting her” in fear of death or hurt. Consent procured in such manner is not valid.
In case of Tuka Ram v. State of Maharashtra, AIR 1979, SC 185, the court held that absence submission is no consent. The Supreme Court reversed finding of High Court which was criticized and thereby rape law were amended in 1983 vide criminal Law (Amendment) Act 43 of 1983.
Case law: State of Maharashtra v. Prakash AIR 1992 SC 1275, In this case the victim had consented to intercourse as her husband had been beaten up and threatened. Thus it falls under the clause (iii) of Section 375.
Therefore, if the consent is procured by putting a woman or any person in whom she is interested in fear of death or hurt, it cannot be said as willful consent.
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 the man to whom she believes herself to be lawfully married.
When woman consents person for intercourse believing person to be her husband whereas he is not, is no consent. Case Law: – R. v. Doe (1984) 15 Lox CC 579, in this case, accused was held guilty of rape as he presented himself as the husband of the prosecutrix. The accused could not take plea of consent for sexual act.
5. With her consent, when, at the time of giving such consent, by the reason of unsoundness of mind, or of intoxication – administered personally or through any other – of any stupefying or unwholesome substance – she is unable to understand the nature and consequences of that to which she consents.
This clause was new addition to Section 375, IPC vide the Criminal Law (Amendment) Act 43 of 1983. The object of clause (5) to Section 375 is to safeguard interests of woman who accord consent for sexual intercourse without knowing nature & consequences of the acts by reason of unsoundness of mind under the influence of stupefying or unwholesome substance. Case law: Tulshidas Kandkar v. State of Goa (2003) 8 SCC 590. In this case the accused ravished the victim whose mental faculties were undeveloped, several times. The Apex court held for constituting consent there must be exercise of intelligence based on the moral effect of the act.
Therefore, an act due to mental retardation or deficiency cannot be considered to be consent. It has to be conscious and voluntary act.
6. With or without her consent, when she is under sixteen years of age.
A woman under sixteen is considered incapable of giving consent for sexual intercourse. **
** The age has been increased to eighteen years in 2013 vide the Criminal Law (Amendment) Ordinance, 2013.
Case Law: Sidheshwar Ganguly v. State of West Bengal AIR 1958 SC 143, the apex court held that consent of victim is immaterial when she happens to be under sixteen years of age on date of occurrence of the act of sexual intercourse. In absence of birth certificate the age could be determined by the facts and circumstances including physique of person.
Furthermore, in case of Harpal Singh AIR 1981 SC 361, it was held that even if girl of fourteen years is willing party and invited the accused to have sexual intercourse, the accused would be liable for rape under this clause.
Another clause (7) to Section 375 IPC has been added vide the Criminal Law (Amendment) Ordinance, 2013 which is another exception and states:
7. When person is unable to communicate consent.
Therefore, law clearly lays out what constitutes as a valid consent and what does not. Even for the best Criminal Defense Lawyers, a rape case comes with a mountain like challenge – to establish the validity of consent in law to be able to prove the innocence of the accused. Unlike any other criminal trial, in rape cases, presumption of law is against the accused. If rape is alleged, it is upon a good defense lawyer to prove to the courts that the consent was there for the intercourse and to prove that such consent stands valid in law.
Laws of Rape in India are as stringent as they can get. There is no scope of anomalies in the written law and even the most ambiguous situations are covered so that no savage can take an advantage of an innocent girl/ women:
A 15 years old girl, left her mother’s house and joined the accused because her mother has turned down the proposal of her marriage with the accused on the ground that she was too young. While she was with the accused he had sexual intercourse with her against her will
A 15 years old girl, having been rebuked by her mother leaves her house. At railway station she met the accused who takes her to his house. He provides her clothes, money and ornaments at his house and has sexual intercourse with the girl with her consent.
In both the cases the accused is guilty of offence of rape under Section 375 Indian Penal code. It stated that a man is said to have committed rape when he has sexual intercourse with a woman under sixteen years of age, with or without her consent’. The apex court held in Sidheshwar Ganguly v. State of west Bengal, that the consent of the victim is immaterial when she happens to be under sixteen years of age on the date of the occurrence. Therefore, even if the girl is a willing party then also the person shall be liable under this section.
In the above case the girl is below sixteen years of age, hence, the accused shall be liable under the offence of rape. A man is said to have committed rape if he has sexual intercourse against the will of the girl which is stated in Section 375(D) of the Indian Penal Code. In first case, intercourse was committed without the girl’s will and in second with her consent but the liability shall be same in both the situations because the girl is less than sixteen years of age i.e. less than the consensual age in law.
A, along with other young people was partying at a farmhouse. During the course of the evening, A and a girl aged 17, both drunk, were alone in an upstairs bedroom and he asked the girl whether she wished to lose her virginity. A knew that if the girl had been sober she would not have agreed. Sexual intercourse then took place briefly. The girl subsequently told her parents what had happened. Is A guilty of rape?
A befriended a girl aged 17 and offered her money and drinks. She and several of her friends went to A’s House. A pornographic video-tape was played on A’s T.V. set. A then had intercourse with the girl in a separate room, the girl being under the influence of alcohol and video. ls A guilty of rape?”
In both the above situations, offence of rape has been committed as it falls under Section 375(iv) of the Indian Penal Code. It states that a man is said to commit rape who has sexual intercourse with a woman, 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 stupefying or unwholesome substance, she is unable to understand the nature and consequence of that to which she gives consent. In the present case the girl was under the influence of alcohol and was not in senses to judge the consequences of the act done.
‘X’ enters the house of ‘A’ who is lying in the courtyard. Pointing a gun at A, threatening to shoot him, ‘X’ expresses to A’s wife about his intentions of having sexual intercourse with her. A’s wife succumbs to the threat and agrees.
X is liable to be punished for the offence of Rape mentioned in Section 375 of I.P.C. Section 375(iii) states that a man is said to commit “rape” if he has sexual intercourse with a woman with her consent when such consent has been obtained by putting her or any person in whom she is interested, in fear of death or hurt. In this case the victim had consented to the intercourse in a situation where her husband’s life was endangered. Thus, such consent is obtained under threat and coercion and the act amounts to rape.
CONFUSED BETWEEN RAPE AND ADULTERY?
|Adultery is essentially an offence against the husband||Rape is an offence against the woman herself irrespective of her being married or unmarried.|
|In case of adultery, the consent of the woman is immaterial. In fact, in case of adultery a woman is a willing and consenting party to sexual intercourse with a man – not being her husband. Consent is always a defense to rape.||In case of rape the offence is committed against the will and without the consent of the woman. In case, girl is below 16 years of age, the offence is committed even with though she consents to the intercourse.|
|Adultery is committed only when the woman is married and is a wife of someone.||It can be committed on any woman- married or unmarried.|
|Adultery is a less serious offence and punishment may extend to 5 years of imprisonment, or fine or both.||Rape is a heinous crime and punishment may extend to imprisonment up to life with a minimum of 7, 10 and 20 years of imprisonment U/s 376.|
|Adultery cannot be committed with;
a. An unmarried woman
b. A widow
c. A married woman when her husband consents or connives at it.
d. A divorced woman
|Rape is not committed when: The woman has consented for the’ sexual intercourse and is above 16 years of age and that consent is valid in law.|