RAPE IS RAPE: SECTION 375 by PURNIMA NAIDU @ LexCliq

RAPE IS RAPE: SECTION 375

Women are victims of crimes such as rape, murder, robbery, cheating, dowry death, miscarriage without her consent 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.

INDIAN PENAL CODE, 1860:

Rape (section 375-377)

Sexual offences: as per section 375 to 377 of IPC talks about sexual offences as per section 375 defined as 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.

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 six following descriptions:-

  • 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.
  • 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.
  • Sixth- With or without her consent, when she is under age of sixteen years.[iii]

Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception: Sexual intercourse by man with her consent his own wife, the wife not being under fifteen years of age, is not rape.

 

Essentials ingredients of section of 375:

  • There must be sexual intercourse with a woman by a man;
  • Such a sexual intercourse should be under any of the following circumstances:
  • Against her will;
  • Without her consent;
  • With consent obtained under fear of death or hurt;
  • With consent given under misconception of fact that the man is her husband;
  • Consent given by reason of unsoundness of mind, intoxication or under influence of any stupefying or unwholesome substance;
  • With women under 16 years of age, with or without consent.

 

Mathura rape Case

The infamous rape case of Mathura in the late-1970s was one of the main catalysts for the Indian women’s movement campaigns to amend the law on rape. Mathura was a 16-year-old 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 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 resulted in custodial rape being added to the law on rape in the IPC, and the burden of proof being shifted to the accused in cases of custodial rape occurring within institutions like jails, remand homes, nari niketans, etc.

 

Punishment for Rape: Section 376. Punishment for rape.—(1) Whoever, except in the cases provided for by sub-section

(2), commits rape shall be punished with imprisonment of either description for a term which shall 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 unless the woman raped is his own wife and is not under twelve years of age, in which cases, 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-Within the limits of the police station to which he is appointed; or In the premises of any station house whether or not situated in the police station to which he is appointed; or On a woman is 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 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 home for neglected women or children or a widows’ home or by any other name, which is established and maintained for the reception and care of women or children.

 

Conclusion:

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.

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