Section 375 - Rape
Before understanding what constitutes the offence of rape, it is important to understand what is understood by Consent.
What is Consent?
Explanation 2 to Section 375 defines consent as
- unequivocal
- voluntary
- agreement
when a woman, by:
- words
- gestures or
- any form of verbal or non-verbal communication
communicates willingness to participate in the specific sexual act.
PROVISO - A woman cannot be regarded as consenting to the sexual activity merely because she does not physically resist to the act of penetration.
Ingredients of Section 375
This Section can be understood with the help of the following diagrams:
Important Case Law
Mohd. Zuber Noor Mohammed Changwadia v State of Gujarat [1999 Cr LJ 3419 (Guj)] - Where a prosecutrix is a minor girl suffering from pain due to ruptured hymen and bleeding vagina depicts same, minor contradictions in her statements are not of much value. Also, absence of any injury on male organ of accused is no valid ground for innocence of accused, conviction under Section 375 IPC proper.
Prithi Chand v State of Himachal Pradesh [AIR 1989 SC 702] - Mere absence of spermatozoa cannot cast doubt on the correctness of the prosecution case.
Deepak Gulati v. State of Haryana [AIR 2013 SC 2071] - Intercourse under promise to marry constitutes rape only if from initial stage accused had no intention to keep promise. An accused can be convicted for rape only if the court reaches the conclusion that the intention of the accused was mala fide and that he had clandestine (hidden) motives.
Section 376 - Punishment for Rape -
Ingredients
This section can be understood with the help of the following diagram:
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;
Ingredients
"Armed Forces" includes the following and their members:
- Naval
- Military and
- Air Forces
- Paramilitary Forces
- Auxiliary forces controlled by Central/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;
Ingredients
The Oxford English dictionary defines the word "precincts" as "the area around a place or a building, sometimes surrounded by a wall".
Similarly, the word "convalescence" has been defined as: "a period of time when you get well again after an illness or a medical operation; the process of getting well".
Hence, reading this explanation with the above definitions, it comes out that "hospital" means:
(i) area around the hospital AND
(ii) area around any institution for the
- reception and- treatment of persons
~ during recovery from illness/medical operation or~ requiring medical attention or rehabilitation
(c) "police officer" shall have the same meaning as assigned to the expression "police" under the Police Act, 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.
Ingredients
"Women's or children's institution" means any institution established/maintained for the reception/care of women or children. It may be known as:
- orphanage or
- home for neglected women and children or
- widow's home or
- any other name.
Section 376A - Punishment for causing death or resulting in persistent vegetative state of victim - Whoever, commits an offence punishable under sub-section (1) 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...
[NOTE: This Section was inserted by Criminal Law (Amendment) Act 2013].
Ingredients
1. The offender must commit rape punishable under Section 376(1) or (2).
2. While committing such rape, he should inflict injury on the victim.
3. the injury must be such as to cause the death of the victim or cause her to be in a persistent vegetative state.
4. If the above ingredients are fulfilled, the punishment under this section will be attracted.
Punishment - Minimum twenty years rigorous imprisonment extending up to imprisonment for remainder of natural life or death.
Classification of offence
- Cognizable
- Non-bailable
- Triable by Court of Session
Section 376AB - Punishment for rape on woman under twelve years of age - Whoever, commits rape on a woman under twelve years of age shall be punished...
[NOTE: This Section was inserted by Criminal Law (Amendment) Act 2018].
Ingredients
1. The offender must commit rape.
2. The victim must be under twelve years of age.
3. If the above ingredients are fulfilled, the punishment under this section will be attracted.
Punishment - Minimum twenty years rigorous imprisonment extending up to imprisonment for remainder of natural life and with fine or with death.
Provisos
- 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.
Classification of Offence
- Cognizable
- Non-Bailable
- Triable by Court of Session
- Non-Compoundable
Section 376B - Sexual intercourse by husband upon his wife during separation - 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...
Ingredients
1. The offender must have sexual intercourse with the victim without her consent.
2. The victim must be his own wife.
3. The victim must be living separately from the offender under a decree of separation or otherwise.
4. If the above ingredients are satisfied, the punishment under this section will be attracted.
Punishment - Minimum two years imprisonment of either description extending up to seven years, and fine.
Classification of offence
- Cognizable (but only on complaint of the victim)
- Bailable
- Triable by Court of Session
Explanation - In this section, "sexual intercourse" shall mean any of the acts mentioned in clauses (a) to (d) of section 375.
Section 376C - Sexual intercourse by person in authority - Whoever, being-
(a) in a position of authority or in a fiduciary relationship; or
(b) a public servant; or
(c) 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
(d) 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....
Ingredients
1. The offender must hold either one of the following position:
(a) position of authority or fiduciary relationship
(b) public servant
(c) superintendent or manager of:
- jail- remand home- other place of custody- women's or children's institution
(d) management or staff of a hospital
2. The offender must abuse such position or fiduciary relationship to induce or seduce the victim.
3. The victim must be:
- under the charge of the offender or- present in the premises to have sexual intercourse with the offender
4. The offender must commit such sexual intercourse not amounting to the offence of rape.
5. If the above ingredients are satisfied, there will be sexual intercourse by a person in authority.
Punishment - Minimum five years rigorous imprisonment of either description extending up to ten years, and fine.
Classification of offence
- Cognizable
- Non-Bailable
- Triable by Court of Session
- Non-Compoundable
Explanation 1- 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 1 to section 375 shall also be applicable.
[Explanation 1 to Section 375 provides that "vagina" shall also include labia majora].
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.
Ingredients
"Superintendent" includes a person holding any other office who can exercise authority or control over the inmates of:
- jail
- remand home
- other place of custody or
- women's or children's institution
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...
Ingredients
1. There must be more than one offenders.
2. The offenders must constitute a group or act in furtherance of a common intention.
3. In pursuance of the common intention, the offenders must rape the victim.
4. If the above ingredients are fulfilled, there will be gang rape and each one of them shall be deemed to have committed rape.
Punishment - Minimum twenty years rigorous imprisonment extending up to remainder of natural life, and with fine.
Provisos
- 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.
Classification of Offence
- Cognizable
- Non-Bailable
- Triable by Court of Session
Section 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...
Ingredients
1. There must be more than one offenders.
2. The offenders must constitute a group or act in furtherance of a common intention.
3. In pursuance of such common intention, the offenders must rape the victim.
4. The victim must be less than sixteen years of age.
5. If the above ingredients are satisfied, the punishment under this section will be attracted.
Punishment - Imprisonment for remainder of natural life and fine.
Provisos
- 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.
Classification of Offence
- Cognizable
- Non-Bailable
- Triable by Court of Session
Section 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...
Ingredients
1. There must be more than one offenders.
2. The offenders must constitute a group or act in furtherance of a common intention.
3. In pursuance of such common intention, the offenders must rape the victim.
4. The victim must be less than twelve years of age.
5. If the above ingredients are satisfied, the punishment under this section will be attracted.
Punishment - Imprisonment for remainder of natural life and fine or death.
Provisos
- 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.
Classification of Offence
- Cognizable
- Non-Bailable
- Triable by Court of Session
Section 376E - Punishment for repeat offenders - Whoever has been previously convicted of an offence punishable under section 376 or section 376A or section 376AB* or section 376D or section 376DA* or section 376DB* and is subsequently convicted of an offence punishable under any of the said sections shall be punished...
*Added by amendment in 2018.
Ingredients
1. The offender must be previously convicted of any one of the following offences:
- Section 376 = Punishment for Rape- Section 376A = Punishment for causing death or resulting in persistent vegetative state- Section 376AB = Punishment for rape on woman under twelve years of age- Section 376D = Gang Rape- Section 376DA = Punishment for Gang Rape on woman under sixteen years of age- Section 376DB = Punishment for Gang Rape on woman under twelve years of age
2. The offender must subsequently be convicted of any one of the above offences.
3. If the above ingredients are satisfied, the offender will be considered as a repeat offender and the punishment under this section will be attracted.
Punishment - Imprisonment for remainder of natural life or death.
Classification of offence
- Cognizable
- Non-bailable
- Triable by Court of Session
Section 377 - Unnatural Offences - Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished...
Ingredients
1. The offender must voluntarily have carnal intercourse with any:
- man
- woman or
- animal
2. Such carnal intercourse must be against the order of nature.
3. If the above ingredients are satisfied, there will be an unnatural offence.
Punishment - Imprisonment for life, or Up to ten years imprisonment of either description and fine.
Explanation - Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
Classification of offence
- Cognizable
- Non-bailable
- Triable by Magistrate of First Class
- Non-Compoundable
Important Case Law
Navtej Singh Johar & Ors. v Union of India (AIR 2018 SC)- Supreme Court partially struck down Section 377 of the Indian Penal Code (IPC) and decriminalized gay sex between consenting adults. The Bench consisted of Chief Justice Dipak Misra, Justice A M Khanwilkar, Justice Rohinton Nariman, Justice D Y Chandrachud and Justice Indu Malhotra.
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