Section 376 Indian Penal Code- An Analysis

Introduction

Section 376 of IPC lays down the punishment for Rape in India while Section 375 Indian Penal Code,1860 defines the offence of Rape. Rape under Section 376 Indian Penal Code is physical as well as psychological crime committed not only on woman body but also on her mind and soul as it has been rightly observed by  Justice Arjit Pasayat: ” While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.”Rape as a crime is an offence against the whole humanity.  It not only injures the feminine character of a woman but also the physical and psychological framework of her.  Black’s Law Dictionary defines rape  “The unlawful carnal knowledge of a woman by a man forcibly and against her will.”

Section 375 of the Indian Penal Code, 1860 defines Rape as follows:

Definition of Rape 

S.375. A man commits “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:

Firstly. –– Against her will.

Secondly. –– Without her consent.

Thirdly. –– With the consent of woman  has been obtained by subjecting her in fear of death or  hurt.

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.

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.

Sixthly. –– With or without her consent, when she is under eighteen years of age.

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;

 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.

Exceptions –– 1. A medical procedure or intervention shall not constitute rape; 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.

Punishment for Rape: Section 376 of the Indian Penal Code,1860 prescribes the Punishment for Rape it say that

S.376 Indian Penal Code. Punishment for rape.—

(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of of not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine.

Punishment in case the woman raped is his own wife

If the women raped is his own wife and is not under twelve years of age, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

(2) Whoever,—

(a) being a police officer commits rape—

(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; or

(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) 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 woman’s or children’s insti­tution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

(e) commits rape on a woman knowing her to be pregnant; or

(f) commits rape on a woman when she is under twelve years of age; or

(g) commits gang rape, shall be punished with 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.

Explanation 1.—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.

Explanation 2.—“Women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected woman or children or a widows’ home or by any other name, which is established and maintained for the reception and care of woman or children.

Explanation 3.—“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.

Ancillary/Related laws in Indian Penal Code and Code of Criminal Procedure,1973 relating to Section 376 Indian Penal Code

• Disclosure of identity of the victim of certain offences etc.—U/s 228A[1] of Indian Penal Code, 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.
• Presumption as to absence of consent in certain prosecutions for rape.U/s 114-A of the Evidence Act presumption can be made as to the absence of consent in certain prosecutions for rape.
• U/s 164A of Code of Criminal Procedure, provisions for medical examination of rape victims are given.
• Section 327(2) of Code of Criminal Procedure, there should be in camera trial for all rape victims.

Changes introduced by Criminal Law Amendment Act, 2013 (Nirbhaya Act) in Section 376 Indian Penal Code

Sections 376A to 376E were added to the Indian Penal Code as a result of the aforesaid amendment. These Sections are as follows:

 

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.

Section 376 B: Sexual Intercourse by husband upon his wife during separation.

 Whoever has sexual intercourse with his own wife who is living separately and 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.

Section 376 C: Sexual intercourse by a person in authority.

Whoever, being-

1.      in a position of authority or in a fiduciary relationship; or
2.     a public servant; or
3.      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
4.     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 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 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.

 

 Section 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.

Section 376E: Punishment for repeat offenders.

Whoever has been previously convicted of an offence punishable under section 376 or section 376A or section 376D 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.’

Changes introduced by Criminal Law Amendment Act, 2018

The Criminal Law Amendment Act, 2018 introduced the following sections to the IPC these are Sections 376 AB, Section 376 DA and Section 376 DB. These Sections are given below:

“376AB.Punishment for committing 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.”.

 376 DA: 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:

Such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:  Any fine imposed under this section shall be paid to the victim.

POSCO Act and the Criminal Law Amendment Act, 2018

Amendment of Section 42 of the POSCO Act

The Section 42 of the POSCO Act,2012 was amended by the Criminal Law Amendment Act, 2018 which provides that the person convicted of the offence under the POSCO Act and the IPC will be subject to punishment which is higher in degree.

Analysis of Landmark Judgement of Nirbhaya on Section 376 IPC

Facts:-

The 23-year-old paramedic student got assaulted and brutally gangraped on the evening of December 16-17, 2012 in a moving Bus in south Delhi by six individuals prior to being tossed out. She succumbed to her injuries on December 29, 2012 at Mount Elizabeth Hospital in Singapore.

Trial Court Decision:

The Trial Court vide its judgement dated 10.9.2013 and  after analyzing all the circumstantial and direct evidence on record convicted all the three accused under Sections 201 read with Section 120-B IPC,365/366 read with section 120-B IPC, Section 307 read with Section 120-B IPC, under Section 376(2)(g) IPC, Section 377 read with Section 120-B IPC, Section 302 read with section 120-B, under Section 395 IPC, under section 397 read with section 120-B IPC, and under section 412 IPC.

Delhi High Court decision

The Delhi High Court confirmed the death penalty awarded to the convicts vide Judgement dated 13.3.2014.

Supreme Court’s Verdict

The Hon’ble Supreme Court of India vide its Judgement in Criminal Appeal Nos. 607-608 of 2017 while relying on various forensic and scientific evidence and also observing that case falls within the “rarest of rarest cases” awarded the punishment of death sentence to all the four convicts.

Recent Judgement of Supreme Court on Rehabilitation of Rape victims

Supreme Court view on condition of rape victims

The Hon’ble Supreme Court of India in its Judgement dated 20.1.2021 titled as Ms. X v/s The State of Jharkhand, Writ Petition (Civil) No.1352 of 2019 held that rape victim suffers not only from trauma but also discrimination from the society. In this case the apex court while relying on its earlier judgement titled as Nipun Saxena and another v/s Union of India and Others, (2019) 2 SCC 703 further held that “A victim of rape will face hostile discrimination and social ostracisation in society.

The Hon’ble Supreme Court in this case also laid down the following guidelines for rape victims, which are as follows:

1. The Deputy Commissioner may consider the case of the petitioner for providing house under Prime Minister Awas Yojna or any other Central or State Scheme in which petitioner/rape victim could be provided accommodation.
2. The Deputy Commissioner must ensure that petitioner’s children are provided free education in any of the Government Institutions  till they attain the age of 14 years.
3. The District Legal Services Authority must render free legal services  to the petitioner to safeguard the interests of the petitioner.
4. The Senior Superintendent of Police and other competent authority shall review the Police security provided to the petitioner from time to time and take such measures as deem fit and proper.