Rape

 

Rape

Introduction

Criminal law is set of rules approved by the legislature to seek prevent from undesirable and inhuman conduct . Criminal law has been served as guardian of the society , which make the society free from certain inhuman conduct by defining them as crime and attempted to prohibit such conduct by system of procedure and penalties

The criminal law always protected the fragile person against whom Crime can be committed easily. it seek to protect such fragile person exploitation and abuse by certain unsocial acts . one of such offence is 'rape' . which is find place in the Penal Code of every country.The term "rape" is derived from latin word 'rapio' which means to seize . Rape is therefore forcible seizure of or ravishment of a woman without her consent.

2. Rape

Section 375 of the Indian Penal Code define the offence of rape . A man is said to commit 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 thepenis, into the vagina, the urethra or anus of a woman or makes herto 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

First-Against her will. 

Secondly.-Without her consent.

Thirdly With her consent, when her consent has been obtained by putting her or any person in whom she is interested, infear of death or of 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 uder 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:

Exception 1-A medical procedure or intervention shall not constitute rape Exception 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.]

The offence of rape now a day becoming common phenomena, on an average 88 rape takes place everyday in India according to the National crime record bureau (NCRB) data of 2019.

In case of Deepak Gulati vs state of Haryana AIR 2013 SC 2017 , Court stated that ,

Rape is the most morally and physically reprehensible crime in society, as it is an assault on the body , mind and privacy of the victim. while a murderer destroy the physical frame of the victim , A rapist degrade and defiles the soul of a helpless female . rape reduces a women to an animal, as it shakes every core of her life. by no means can a rape victim be called an compliance . Rape leaves a permanent scar on the life of the victim and therefore a rape victim is place on a higher pedestal then injured witness. rape is a crime against the Antara society and violates the Human right of victim. Being the most hated crime, rape tantamount a serious blow to the supreme honour of a woman ,and and offends both aur esteem and dignity. It causes psychological and physical harm to the victim leaving upon indelible mark

After the criminal (Amendment ) Act 2013, drastic changes has been made and expanded the definition of rape and substituted new section for old section such as 370, 375, 376, 376 a, 326 b, 276 c, and 376d. After the amendment age of consent has increased to 18 and it makes any form of penitration as rape. 

As the exception 2 of this section does not result in rape, if a man done sexual intercourse or sexual act with his wife , if the wife is still less than 18 . But But in the case of thought vs Union of India , Court held that that the provision to be unconstitutional as far it relates to girl between age 15 to 18. Now the exception 2 has to be read as " sexual intercourse or a sexual act by a man with his own wife , the wife not being 18 years of age is not rape.

CONSENT AND WILL

section 375 intend to include every form of rape whether it was done against your will or Against her consent . Generally both the words are interplace with each other , what section 375 uses both the word can it have different connotination and different dimension under this section .

In case of Dileep Singh vs state of Bihar [( 2005),1 SCC,88], though will and consent often Interplace and an act against the will of the person can be said to be an act done without consent, the Indian Penal Code categorises these to expression under separate head in order to be as comprehensive as possible.

in this section the word 'will' include the thing that is done with desire or choice , it can be said that the act done by a person with having desire to do such act without being under pressure or under the influence of any other person . The word consent has been defined under section 90 , sad that the consent given on the fear or misconception is not amount to consent.

3. PUNISHMENT OF RAPE

section 376 provides for the punishment of rape subsection (1) of section 376 Says that whoever commit rape shall be punished not less than 10 years but which may extend to imprisonment for life. subsection (2) of this section provides punishment in special cases whoever, 

(a) being a police officer, commits rape 

(i) within the limits of the police station to which such police officeris 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 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 commits rape, on a woman incapable of giving consent, or 

(k) being in a position of control or dominance over a woman, commit 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 disfigures or 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.

Subsection (3) says that 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.

4.PUNISHMENT FOR CAUSING PERSISTENT VEGITATIVE STATE .

Section 376 a : this section says that in the course of committing rape causes or inflict any injury which lead to death of such women or leaves the women Indore persistent vegetative state, shall be punished with death or rigorous imprisonment for a term which shall not be less than 20 years but which may extend to imprisonment for life.

5. PUNISHMENT FOR RAPE ON A WOMEN UNDER TWELVE YEARS OF AGE .

Section 376 ab : this section punishes the person who commit rape on women under the twelve years of age . However commit offence specified in the section Shall punished with death or imprisonment not less than 20 years but which may extend to imprisonment for life.

6. SEXUAL INTERCOURSE BY HUSBAND WITH HIS WIFE DURING SEPARATION.

Under this section if a husband has sexual intercourse with his own wife who at the time of such sexual intercourse living separately and such sexual intercourse has been done without the consent of wife. The husband shall be punished with imprisonment not less than two year but which may extend to seven years.

7. SEXUAL INTERCOURSE BY PERSON IN AUTHORITY .

This section punishes the person who,

(a) in a position of authority or in fiduciary relationship.

(b) a public servant.

(c) superintendent for manager of a jail , remand home aur other place of custody established by or under any law for the time being in force or women's aur children institution.

(d) on the management of hospital or being on the staff of Hospital.

any person as above mentioned has sexual intercourse with women under his custody or charge shall be punished with imprisonment which less than 5 year but which may extend to 10 year.

8 . GANG. RAPE

Section 376 define the offence of gang rape and provides for it's punishment. According to Section 376 where women a is raped by more than one person constituting a group is said to commit gang rape . This section provides that where women is raped by more than one person all the person acting in furtherance of a common intention,shall be punished with imprisonment not less than 20 year but which may extend to life imprisonment and shall also be liable to fine

Section 376 DA: this section punishes of persons who committed rape with the common intention of a woman under 16 years of age . Such persons shall be punished with imprisonment for life and also liable to fine.

section 376 DB : this action also provides for the punishment for offence of gang rape required age of the ominous under 12 years.

whoever committed gang rape of a woman under 12 years of age all the person committed the act in furtherance of common intention , shall be punished with death or imprisonment for life and also liable to fine.

9. PUNISHMENT FOR REPEATED OFFENDER

Any perso who 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, or with death