Legal provisions regarding Punishment for “Rape” under section 376 of Indian Penal Code

Legal provisions regarding Punishment for rape under section 376 of Indian Penal Code, 1860.

Punishment for rape:

According to Section 376 of the Indian Penal Code:

“(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 case, he shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both:

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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 women’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:-

When 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 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.

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.”

Section 376 provides the punishment for rape. The section consists of two clauses. The first clause is in respect of rape generally. The second clause deals with instances of custodial rape.

According to the first clause of Section 376:

i) A person who is convicted of the offence of rape a woman,

who is not his wife 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 10 years and fine;

ii) If the woman raped is the wife of the man who is below 15 years, but above 12 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.

The minimum punishment for rape is seven years of imprisonment. The proviso to the section states that if a court wants to impose a sentence which is less than seven years, then the court will have to state adequate and special reasons in the judgment, as to why it is choosing to impose a lesser sentence.

The proviso to Section 376 (2) stipulates that if a court decides to impose a lesser sentence than the stipulated period of 10 years rigorous imprisonment, then there is a duty cast upon the Court to record adequate and special reasons for awarding lesser sentence.

The offence under Section 376 is non-cognizable and summons should ordinarily issue in the first instance, and it is, moreover, bailable but not compoundable.

The Supreme Court has discussed the phrase ‘adequate and special reasons’ in State of Karnataka v. Krishnappa [(2000) Cr.LJ 1793 (SC)]. In this case, a 49 year old man raped a 7-8 years old girl. The trial court convicted him and sentenced him to rigorous imprisonment for 10 years.

But the Karnataka High Court reduced the sentence to rigorous imprisonment for four years on the ground that the accused was ‘unsophisticated and an illiterate citizen’ belonging to a weaken section of society and that he was a ‘chronic addict’ to drinking. The Supreme Court reversed the order of the High Court, observing that the reasons given by the High Court were ‘neither special nor adequate’.

The Supreme Court held: The measure of punishment in a case of rape cannot depend upon the social status of the victim or accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and gravity of the criminal act. Crimes of violence upon women must be severely dealt with which may serve as a deterrent for the commission of like offences by others.

Custodial rape:

The Criminal Law (Amendment) Act, 1983 makes sexual intercourse by a person in the position of custodian of his victim – termed ‘custodial rape’ – as an offence punishable with imprisonment for at least ten years which may extend to life and also to fine.

‘Custody’ means ‘care keeping’; charge (as custody of children and minors); judicial or penal safe keeping (as custody of prisoner; imprisonment; care; guard). When a woman is under the guard or confinement or care or charge of a man, and that man commits intercourse with her with or without her consent, is called ‘custodial rape’.

In the custodial rape, it is not the rape victim but the accused who will be required to furnish proof of his innocence. The victim’s word for not having consented to a rape would be accepted as true by the courts.

According to clause (2) of Section 376, the following are the categories of custodial ‘rape’:

I. Police Officer

A police officer who 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 in his custody or in the custody of police officer subordinate to him, 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. [Sec. 376(2)(a)]

Police officers can induce, coerce helpless women under custody. In Tukaram v. State of Maharashtra [AIR 1979 SC 185] [The Mathura Case], Mathura was a 14-16-year old (a minor) Harijan orphan girl. Gama, brother of Mathura lodged a report at police station Desai Gunj, alleging that Mathura had been kidnapped by Nushi, her husband Laxman and Ashok.

During the investigation of the case, Mathura, along with others, was detained in police custody. The report was recorded by Head Constable Baburao. After Baburao had gone away, Mathura, Nushi, Gama and Ashok started leaving the police station.

Ganpat, constable on duty, however, asked Mathura to wait at the police station and told her companions to move out. The direction was complied with. In the late hours of the night Ganpat had taken her to the Chhapatri and raped her in spite of protests and stiff resistance on her part. Then another constable Tuka Ram fonded and tried to rape her but being too heavily drunk did not succeed. He did molest her, though. All this happened on 26 March, 1972.

On the trial the Sessions Judge of Chandrapur freed the alleged rapists as he found Mathura ‘a shocking liar’ and as rape had not been proved. On appeal the Bombay High Court (Nagpur Bench) reversed the finding of the Sessions Judge and found Ganpat guilty of rape and sentenced him to five years rigorous imprisonment.

The other constable Tuka Ram was sentenced to one year’s rigorous imprisonment for molesting the woman. The High Court held that Mathura could hardly have consented to intercourse in the circumstances of threats from the policemen and the sexual intercourse in question was forcible and amounted to rape.

Against the judgment of the Bombay High Court, the accused appealed to the Supreme Court, which, on September 15, 1978, rejected the High Court’s contentions. It held, among other reasons’ that only ‘fear of death or hurt’ can vitiate consent for sexual intercourse and no such finding was recorded and that there was not enough circumstantial evidence of Ganpat’s guilt. In the result, the Supreme Court held that the appellants were not guilty and acquitted them of the charges.

The Supreme Court observed that Mathura was not subjected to any fear which may have led her to submit to the act and that there were no marks of injury on her person which showed that the whole affair was a peaceful one and that the story of stiff resistance having been put up by the girl is all false. It also observed that Mathura was not alone when Ganpat ordered her to stay and she could have resisted and appealed to her brother. Her conduct in meekly following Ganpat and allowing him to have his way with her to the extent of satisfying his lust in full made them feel that the consent in question was not a consent which could be brushed aside as ‘passive submission’.

The judgment of the Supreme Court received great significance throughout India. The Supreme Court did not review the Mathura case. But hot discussions were made in Parliament. As a result, the Criminal Law (Amendment) Act, 1983 was passed amending Sections 375 and 376. Sub-section (2) and Explanations were added. The scope of Sections 375 and 376 was widened.

State of Maharashtra v. Madhukar N. Mardikar [1991 (1) SCC 57], the accused, a Sub-Inspector of Police arrested some prostitutes from a brothel house and confined them in Police Station and raped a prostitute. She lodged a complaint against him.

The accused contended that, since the complainant was a prostitute, the provisions of rape would not be applicable to him. The trial Court did not agree with his contention and convicted him. On appeal, the High Court reversed the decision of the trial Court. On further appeal, the Supreme Court confirmed the decision of trial court and convicted the accused.

II. Rape by Public Servant with woman in his custody:

A public servant, who 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 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. [Section 376 (2) (b)]

Section 376-B of the I PC lays down that: “Whoever, being a public servant, takes advantage of his official position and induces or seduces, any woman, who is in his custody as such public servant or in the custody of a public servant subordinate to him, to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine”.

Offence under Section 376-B of I PC is cognizable (but no arrest shall be made without shall be made without a warrant or without an order of a Magistrate), bailable and is triable by the Court of Session.

III. Rape by Officer of jail, remand home, etc.

A person 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 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 [Section 376(2)(c)].

Section 376-C of the IPC lays down that: “Whoever, being the 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 of a women’s or children’s institution takes advantage of his official position and induces or seduces any female inmate of such jail, remand home, place or institution to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.

Explanation 1:-

“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 he can exercise any authority or control over its inmates.

Explanation 2:-

The expression “women’s or children’s institution” shall have the same meaning as in Explanation 2 to sub-section (2) of Section 376.” (i.e., “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 by any other name, which is established and maintained for the reception and care of women or children”).”

Offence under Section 376-C of IPC is cognizable (but no arrest shall be made without a warrant or without an order of a Magistrate), bailable and is triable by the Court of Session.

IV. Rape by a person in management of Hospitals

A person 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 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 [Section 376(2)(d)].

Explanation 3 to Section 376:-

‘Hospital’ means the precincts of the hospital and includes the precinats of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation”.

Section 376-D of the IPC provides that: “Intercourse by any member of the management or staff of a hospital with any woman in that hospital: Whoever, being on the management of a hospital or being on the staff of a hospital takes advantage of his position and has sexual intercourse with any woman in that hospital, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.

Explanation:—

The expression “hospital” shall have the same meaning as in Explanation 3 to sub-section (2) of Section 376”. Offence under Section 376-D of IPC is cognizable (but no arrest shall be made without a warrant or without an order of a Magistrate) bailable and is triable by the Court of Session.

V. Raping of Pregnant Woman

When a person who commits rape on a woman knowing her to be pregnant is deemed as custodian rape and 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 be liable to fine [Section 376(2)(e)].

In Оm Prakash v. State of Uttar Pradesh [2006 Cr.LJ 2913 (SC)], the Supreme Court observed that for punishing an accused by application of Section 376(2)(e) the prosecution has to establish that the accused knew that the victim was pregnant because it is for this reason that stringent punishment is prescribed for offence under Section 376(2)(e). What is necessary under this section is “certainty of knowledge and not merely possibility of knowledge. This is clear from the use of expression “Knowing her to be pregnant”. As there is no evidence in ‘knowing her to be pregnant’, the punishment of 10 years of imprisonment has been reduced to minimum sentence of 7 years prescribed under Section 376(1) IPC.

VI. Raping a girl below the age of 12 years

If a girl below the age of 12 years is raped, such rape is also deemed as custodial rape. A person who commits rape on a woman when she is under twelve years of age 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 [Section 376(2)(f)].

In Nuvvula Kiran v. State of AP[2004 Cr.LJ 1263 AP], the accused was son of tenant and alleged to have taken a girl of 5 years to terrace of house by stating that he will give her chocolates and committed rape. The victim had informed the commission of offence to her parents. Their evidence was corroborated by medical evidence. The Court held that conviction of accused under Section 376(2)(f) was proper.

Gang Rape:

If a woman is raped by more than one man it is called ‘gang rape’ and this type of rape is also deemed as custodial rape. The person who 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 [Section 376(2)(g)].

Explanation 1 to Section 376 states that when a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the person shall be deemed to have committed gang rape within the meaning of this sub-section.

In gang rape, if rape has been committed by even one, all the accused will be guilty irrespective of the fact that she had been raped by one or more of them and it is not necessary for the prosecution to adduce evidence of a completed act of rape by each one of the accused.

In other words, this provision embodies a principle of joint liability and the essence of that liability is the existence of common intention. The common intention presupposes prior concert which may be determined from the conduct of offenders revealed during the course of the act and it could arise and be formed suddenly, but, there must be meeting of minds.

In Bhanwaria v. State of Rajasthan [1994 Cr.LJ 3742 (Raj.)], it was observed that, in a case of gang rape, mere absence of injuries on the back or private parts of the victims would not be sufficient to set aside conviction when place of occurrence was a soft ground and story of resistance by the victims was proved by the torn clothes and abrasions and bruises on cheeks and breasts.

Also simply because injuries were not found on the private part of the ladies, it could not be said that sexual intercourse was committed with consent. The accused were held liable to be convicted under Section 367(2)(g) of IPC.

In Promod Mehta v. State of Bihar [MR 1989 SC 1475], four persons forced their entry into a house. They were charged with raping a young unmarried girl. Medical evidence supported the fact of rape.

The conviction of all of them was upheld without it being necessary to show whether all of them or which of them participated in the crime under Explanation 1 to clause (g) of sub-section (2) of Section 376 of IPC.

In Munshi v. State of MP [2002 Cr.LJ 4808 (MP)], the charge was that a staff nurse was gang raped by two accused at point of knife when she was going to hospital for her duty. One accused was known to her and she correctly identified another accused in identification parade and also in the Court. Prosecutrix was a matured lady and the accused was much younger than her.

Court observed that there could be no reason for false implication. Plea of alibi taken by accused was not proved. Medical evidence confirmed that she was subjected to sexual intercourse. It was corroborated by evidence of two doctors of the hospital whom she had narrated the incident. The Court held that there could be no reason for false implication and convicted the accused under Section 376(2)(g) of IPC.

In Bhupinder Sharma v. State of Himachal Pradesh [AIR 2003 SC 4684], the Supreme Court held that it is not necessary for the prosecution to adduce clinching proof of a completed act of rape by each one of the accused on the victim (or each one of the victims where there are more than one) in order to find accused guilty of gang rape and convicted them under Section 376(2)(g).

The Supreme Court further ruled that every member of such a group, acting in furtherance of common intention of the group by virtue of the deeming explanation, per se deserves the minimum sentence stipulated in Section 376(2). In Uttam Kumar v. State of Maharashtra [(1991) Cr.LJ 1644 (Bom.)], has ruled that involvement of a group of persons is not necessary in gang rape.

In Banti v. State of Madhya Pradesh [1992 Cr.LJ 715 MP], a woman, prostitute filed a case alleging that she was gang raped. On medical examination, no evidence of gang rape were found. The accused proved that she was a prostitute, unchaste woman and having immoral character. The Trial Court did not believe the prosecution and acquitted the accused. On appeal, the High Court also confirmed the trial Court’s judgment.

Evidence of Prosecutrix:

In every rape case, the evidence of the prosecutrix or the woman who has been raped is a very crucial piece of testimony to prove the case against the accused. It is now well settled that conviction for an offence of rape can be based on the sole testimony of prosecutrix, if it is found to be natural, trustworthy and worth being relied on.

The apex Court has asserted, in State of Punjab v. Gurmit Singh [AIR 1996 SC 1393], that a court can rely upon the evidence of prosecutrix, even without seeking corroboration, if it inspires confidence. If for some reason the court finds it difficult to place implicit reliance on her testimony, it has to look for evidence, direct or circumstantial, that may lend assurance to her testimony.

The Supreme Court further observed that the evidence of a girl or woman who complains of rape or sexual molestation, should not be viewed with doubt, disbelief or suspicion. The Court held that the evidence of the victim of a sexual offence is entitled to great weight even without corroboration.

In State of Punjab v. Ramdev Singh [AIR 2004 SC 1290], it has been stated that there is no rule of law that testimony of prosecutrix cannot be acted without corroboration in material particulars.

In State v. Dayal Sahu [(2005) Cr.LJ 4375 (SC)], the Apex Court observed: “Once the statement of prosecutrix inspires confidence and is accepted by Court as such, conviction can be based on the solitary evidence of the prosecutrix and no corroboration would be required…. Corroboration of the testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence”.

In a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts.

An application for trial-in-camera without disclosing the nature of the applicant was allowed.