JAMIA MILLIA ISLAMIA

RAPE (OFFENCES AGAINST WOMEN)

LAW OF CRIMES I

TABISH KAMAL
B.A. LL.B
RD
3 Semester(Regular)

SUBMITTED TO: DR. SAMIA KHAN

 CONTENT

1. INTRODUCTION.................................................................................3

2. OFFENCES AGAINST WOMEN UNDER IPC...............................5

3. RAPE [SECTION 375 & 376]...............................................................6

4. ESSENTIAL INGREDIENTS OF RAPE..........................................7

5. PUNISHMENT FOR RAPE (SECTION 376)...................................7

6. MATHURA RAPE CASE..................................................................9

7. GANG RAPE.....................................................................................11

8. OFFENCES AGAINST WOMEN IN INDIA..................................12

9. CONCLUSION.....................................................................................13

10. BIBLIOGRAPHY.................................................................................14

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 INTRODUCTION

As Swami Vivekananda had said “That country and that nation that do not respect women
have never become great, nor ever be in future”. Women are considered as a weaker sex not
only from physical point of view but also from sociological aspect also. When we refer to
Smritis, we notice that woman has always been dependent on man. During childhood, on her
father, after marriage on her husband, and during her old age on her son. However in olden
times we find say “Where women are respected there Gods reside” Mahatma Gandhi once
observed. To call women a weaker sex it’s liable in mans injustice to women if by strength
means brute strength, then indeed women is less brute than men. If by strength means moral
power then women is work of Gabon the spirit of man in every position like priest, husband
guardian perpetuated the female sex as to obey the man but no one questioned as to why she
must be treated as obeying person. Women were considered inferior to men in practical life.
But in scriptures they were given high position. Thus in past, the status of women in India
was not clear. It was theoretically high but practically low. Women were prohibited to take
part in domestic as well as in external matter. They were under the influence of their parents
before marriage and their husbands after marriage. Thus, the position of women in ancient
India was inferior. There was the custom of Sati. Many women were forcibly sent to the
funeral pyre of their dead husbands. There was no change in the fate of women even during
the British rule in India.

The situation began to change when many national figures started a struggle for India’s
freedom. Mahatma Gandhi openly invited the help from women. Many women came
forward. Among them were Sarojini Naidu, Vijaya Laxmi Pandit, Mrs. Aruna Asaf Ali and
others. Many women thereafter occupied prestigious positions in India. They excelled in
almost all fields such as sports, politics, administration, science and arts.

In the present scenario, the violence and the increasing crimes against women is witnessed by
everyone across the world in some or the other manner. It indicates the enormity and
pensiveness of the monstrosity perpetrated against women in recent years. The global crusade
for the decimation of violence against women is a proof to this fact. The changes in the living
standards, lifestyle, imbalance in the economic growth, changes in social ethos and meagre
concern for the moral values contribute to a vicious outlook towards women due to which

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there is multiplication in crimes against women. Moreover, such incidents are a matter of
grave concern and its structure is absolutely necessary so that the women of India could live
with respect, honour, dignity, liberty and peace in an atmosphere free from atrocities,
denigration and heinous crimes.

There are many legal provisions which punish the culprits committing offences against
women. The Indian Penal Code though, provides provisions for women as a victim of many
crimes such as murder, robbery, theft, etc. but there are certain crimes which are
diametrically characterised against the women known as ‘Offences Against Women’. With
the need of the hour, many new socio-economic offences have been enacted accompanied by
various amendments in the existing laws with an objective to combat these crimes
effectually.

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OFFENCES AGAINST WOMEN UNDER IPC

The Indian Penal Code, 1860, lays down the provisions to penalise the culprit for the heinous
offences against women. Various sections under IPC specifically deals with such crimes. 1

1. Acid Attack (Sections 326A and 326B)

2. Rape (Sections 375, 376, 376A, 376B, 376C, 376D and 376E)
3. Attempt to commit rape (Section 376/511)
4. Kidnapping and abduction for different purposes (Sections 363–373)
5. Murder, Dowry death, Abetment of Suicide, etc. (Sections 302, 304B and 306)
6. Cruelty by husband or his relatives (Section 498A)
7. Outraging the modesty of women (Section 354)
8. Sexual harassment (Section 354A)
9. Assault on women with intent to disrobe a woman (Section 354B)
10. Voyeurism (Section 354C)
11. Stalking (Section 354D)
12. Importation of girls upto 21 years of age (Section 366B)
13. Word, gesture or act intended to insult the modesty of a woman (Section 509)

Women are victims of crimes such as rape, murder, robbery, cheating etc. Which are not
specially directed at them, there are designated as crimes against women, which are directed
specifically against them and are detailed herein.

In is Paper we will discuss about Rape and its punishment mentioned under section 375 and
376 of the Indian Penal Code, 1860.

1
Diva Raihttps, “Offences against women”, I Pleaders, June 27, 2019.

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Rape [Section 375 & 376]

Rape, this term is derived from the Laitn term rapio, which means to seize. Thus rape literally
means a forcible seizure and that is essential characteristics of offence. We can also say that
intercourse with a women without her consent.

Section 375, IPC defines rape. In simple terms, the offence of rape is the ravishment of a
woman, without her consent, by force, fraud or fear. In other words, it is the carnal
knowledge (penetration of any of the slightest degree of the male organ of reproduction) of
any woman by force against her will. It is an obnoxious act of highest degree which violates
the right to privacy and sanctity of a female. Apart from being a dehumanizing and perverted
act, it is also an unlawful interference in the personal life of a woman which is an intense
blow on the honor, dignity, reputation and self-esteem of a woman. This outrageous crime
not only causes physical injury to the victim but also humiliates, degrades and leaves a scar
on the most precious jewel of a woman i. e. her character and dignity.

Essential Ingredients of Rape

Section 375 has the following two essential ingredient-

 Actus Reus: There must be sexual intercourse, as understood in terms of the

provisions of Section 375 (a) to (d), with a woman by a man.

 Mens Rea: The sexual intercourse must be under any of the seven circumstances as
given under Section 375.

As per section 375 : A man is said to commit “rape” who, except in the case hereinafter
excepted, has sexual intercourse with woman under circumstances falling under any of the
seven following descriptions:2

Firstly- Against her will.

Secondly- Without her consent.
Thirdly- With her consent, when her consent has been obtained by putting her or any PS
person in whom she is interested in fear of death or of hurt.

2
The Indian Penal Code, (45 of 1860).

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Fourthly- With her consent, when the man knows that he is not her husband, and that 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 age of sixteen years.
Seventhly- When she is unable to communicate consent.

Explanation 1: For the purpose of this section, “vagina” shall also include labia majora.
Explanation 2: Consent means an unequivocal voluntary agreement when the women by
words, gesture or any form of verbal or non-verbal communication, communication
willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall
not by the reason only of the fact, be regarded as consenting to the sexual activity.
Exception 1- A medical procedure or intervention shall not constitute rape.
Exception 2- Sexual intercourse by man with her consent his own wife, the wife not
being under fifteen years of age, is not rape.

Punishment for Rape (Section 376)

Section 376 provides punishment for committing the heinous crime of rape. This section is
divided into two sub-sections.3

Section 376(1) provides a minimum sentence of seven years of rigorous imprisonment that
may extend to life imprisonment and fine.

Section 376(2) provides punishment not less than ten years of rigorous imprisonment but
may extend to imprisonment for life or death or fine.

3
Ibid.

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Section 376 of IPC
1. 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 shall not
be less than ten years, but which may extend to imprisonment for life, and shall also
be liable to fine.
2. Whoever—
a) being a police officer, commits rape,
i. within the limits of the police station to which such police officer is
appointed; or
ii. in the premises of any station house; or
iii. on a woman in such police officer’s custody or in the custody of a
police officer subordinate to such police officer; or
b) 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
c) being a member of the armed forces deployed in an area by the Central or a
State Government commits rape in such area; or
d) 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
e) being on the management or on the staff of a hospital, commits rape on a
woman in that hospital; or
f) 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
g) commits rape during communal or sectarian violence; or
h) commits rape on a woman knowing her to be pregnant; or
i) commits rape, on a woman when she is under sixteen years of age; or
j) commits rape, on a woman incapable of giving consent; or
k) being in a position of control or dominance over a woman, commits rape on
such woman; or
l) commits rape on a woman suffering from mental or physical disability; or
m) while committing rape causes grievous bodily harm or maims or disfigures or

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 endangers the life of a woman; or
n) 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.

Explanations

For the purposes of sub-section 2

1. “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;
2. “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;
3. “police officer” shall have the same meaning as assigned to the expression
“police” under the Police Act, 1861;
4. “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.

Mathura rape Case

Tukaram v. State of Maharashtra,4 The infamous rape case of Mathura in the late1970s was
one of the main catalysts for the Indian women’s movement campaigns to amend the law on
rape. Mathura was a 16yearold tribal girl from Maharashtra who was raped by a policeman
within a police station. When the case went to the lower court, the accused police constable
was acquitted on grounds that since Mathura had eloped with her boyfriend she was used to
sexual intercourse and hence could not be raped. The court further held that Mathura had

4
Tukaram v. State of Maharashtra,1979 AIR 185.

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consented to sexual intercourse with the policeman because she was of loose moral character.
On appeal, the high court convicted the policeman and held that mere passive submission or
helpless surrender by threats or fear could not be equated with consent. The Supreme Court
acquitted the policeman again. It held that since Mathura had not raised any alarm and there
were no visible marks of injury on her body she had indeed consented to having sex.

Women’s groups and human rights groups all across India rose in unison to criticize this
arbitrary judgment of the Supreme Court, and a sustained campaign for law reform.
After this case, it was interpreted by the Apex Court in many cases that to constitute the offence of
rape, it is not important that there must be some injury on the body of the victim.

2 amendments were happened in section 375 and 376 in 2013 and 2018.

The major change were happened after Nirbhaya Gang Rape5 in 2013 Criminal Law
Amendment Act.

In section 376 of the Penal Code,—

(a) in sub-section (1), for the words "shall not be less than seven years, but which may
extend to imprisonment for life, and shall also be liable to fine", the words" shall not be less
than ten years, but which may extend to imprisonment for life, and shall also be liable to
fine" shall be substituted;

(b) in sub-section (2), clause (i) shall be omitted;

(c) after sub-section (2), the following sub-section shall be inserted, namely :—

"(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:1
Provided that such fine shall be just and reasonable to meet the medical expenses and
rehablitation of the victim:

Provided further that any fine imposed under this sub-section shall be paid to the

5
State Through Reference vs Ram Singh & Ors.

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 victim.

After section 376A of the Penal Code, section 376AB shall be inserted.

1. Section 376AB- 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.

GANG RAPE (SECTION 376D)

Section 376D lays down the punishment for gang rape.

Where a woman is raped by more than one person acting in futhereance of a common
intention, each of them shall be liable for the offence of rape and shall be Punished with
rigourous imprisonment for not less than twenty years which may extend to lifetime
imprisonment and fine.

After section 376D of the Penal Code, the following sections shall be inserted, namely:—

2. Section 376DA- 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:

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 Provided further that any fine imposed under this section shall be paid to the
victim.
3. Section 376DB- 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.

OFFENCES AGAINST WOMEN IN INDIA

There are a variety of psychological, economical, sociological forms of victimization of
women. In our society we have been seen that women are economically discriminated at
working places. Supreme Court in Vishaka and others v State of Rajasthan6 gave a
exhaustive guideline to combat sexual harassment at workplace. At the same time women
are also exploited physically, emotionally and sexually by their husbands.
According to NCRB Report 1 crime committed against women every three minutes, 1
molestation case every 15 minutes, 1 sexual harassment case every 53 minutes, 1 rape case
every 29 minutes, 45% of women have suffered at least one incident of physical or
psychological violence in their life;7

6
Vishaka & Ors. V/S State of Rajasthan (Air 1997 Sc 3011)
7
NCRB, available at http://ncrb.gov.in/

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 CONCLUSION

In the present work we have tried to put forth before the criminal justice system of India that
Indian women are now no safe and always a kind of threat feelings generated among the
women that in the present scenario they can be easily victimized from any nook and corner of
the society. Not only that even foreigners are also not been spared who are coming to India
as many cases have been booked under rape and murders against the foreigners. In this era of
globalization there is an urgent need to motion our Criminal Justice System of India in
maintaining law and order situation of the country that one should feel safe and secure.

Notwithstanding the number of laws to protect and safeguard the rights and interest of the
women, the rate of crime against women and victimization is mushrooming day by day. It is
well said that it takes two to tango. It implies that only laws are not responsible to regulate
and control the augmentation of the crimes against women in our society. The suppression of
evil eyes on women and inculcation of social ethics, morals and values, respect and honor in
every human being towards women is the need of the hour and is a supplement factor that can
equally contribute in reducing the number of crimes against women. However, there is an
exigency of more strict and stringent laws so that any person intending to commit such
crimes couldn’t screw up the courage to act in furtherance of his intention.

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 BIBLIOGRAPHY

BOOKS:
PSA Pillai, Criminal Law (13th Edition, LexisNexis 2017).

STATUTES:

The Indian Penal Code, 1860

WEBSITE:

http://ncrb.gov.in/

blog.ipleaders.in

CASE REFFERED:

Tukaram v. State of Maharashtra,1979 AIR 185

State Through Reference vs Ram Singh & Ors.

Vishaka & Ors. V/S State of Rajasthan (Air 1997 Sc 3011)

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