Section 376 of Indian Penal Code, 1860 – Explained!

Legal Provisions of Section 376 of Indian Penal Code, 1860.

Punishment for rape:

This section provides punishment for the offence of rape. The first sub-section says that whoever, except in the cases covered under the second sub-section, commits rape shall be punished with simple or rigorous imprisonment for a term which shall not be less than seven years but which may be for life or for a term extending up to ten years, and shall also be liable to fine unless the victim is his own wife and not under twelve years of age, in which case, he shall be punished with simple or rigorous imprisonment for a term extending up to two years, or with fine, or with both. A proviso clause has been attached to this part of the section according to which the court may, for adequate and special reasons to be recorded in the judgment impose a lesser sentence than seven years.

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According to the second sub-section, whoever (a) being a police officer rapes a woman (i) within the limits of his police station to which he is appointed; or (ii) in the premises of any station house situated in his police station or not; or (iii) in his custody or in the custody of his subordinate officer; or (b) being a public servant, takes advantage of his official position and rapes a woman in his official custody or in the custody of his subordinate public servant; or (c) being on the management or staff of a jail, remand home or other place of custody established by or under a law in force or of a women’s or children’s institution takes advantage of his official position and rapes any inmate of such jail, remand home, place or institution’; or (d) being on the management or staff of a hospital, takes advantage of his official position and rapes a women in that hospital; or (e) rapes a woman with the knowledge that she is pregnant; or if) rapes a woman under twelve years of age; or (g) commits gang rape, shall be punished with rigorous imprisonment for a term of not less than ten years but which may be for life, and shall also be liable to fine.

There is a proviso attached to this sub-section also, like in the first sub-section, according to which the court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of simple or rigorous imprisonment for a term of less than ten years.

There are three explanations attached to the section the first of which says that where one or more in a group of persons commit rape in furtherance of their common intention, it shall be deemed that each one of them has committed gang rape within the meaning of sub-section (2) (g). The second explanation states that the expression ‘women’s or children’s institution’ means an institution which is established and maintained for the reception and care of women or children, whether it is called an orphanage or a home for neglected women or children or a widow’s home or by any other name.

According to the third explanation, the expression ‘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.

One of the highlights of section 376 as explained above is the provision for minimum mandatory sentence of seven years in case of ordinary rape and of ten years in case of custodial rape. But by providing that the court is free to give a lesser sentence in both cases for which adequate and special reasons are to be given in the judgment, the provision has been watered down.

The result of this is that there are any number of convictions in rape cases in which the sentences awarded have been less than the minimum mandatory. Another special feature of the section is that it has now been realised that custodial rape deserves to be taken note of as a much more serious crime than an ordinary rape and, therefore, deterrent punishment needs to be imposed on the rapist in such a case. The third important feature of the section is the provision for more severe penalty in cases of gang rape.

The Supreme Court has ruled in Balwant Singh v. State, that even if the prosecution has failed to prove the exact number of men who had raped the victim, those must be convicted against whom the charge has been proved beyond doubt. Where a sadhu having profound knowledge of the Vedanta philosophy had the surreptitious habit of luring little girls into his mandir through a procuress and of raping them, and the truth came out after he raped an eight year old girl, it was held that the modus operandi of the sadhu of performing kumaripuja, and in the garb of that raping them later on, necessitated a deterrent sentence of ten years’ rigorous imprisonment, and there was no ground whatsoever of leniency.

Where the families of the accused and the victim are prepared to take a lenient view in a rape case, the same cannot bind a court in any manner. Genuine repentance on the part of the accused who was in his twenties, however, led the court to reduce the sentence of four years’ rigorous imprisonment to two years. Young age of the offender can be taken into consideration while sentencing in rape cases.

Where a father raped his own daughter of tender years, deterrent punishment of seven years’ rigorous imprisonment and a fine of one thousand rupees was held to be appropriate. A sentence of only six months’ rigorous imprisonment on an accused who raped a six year old girl makes mockery of justice, and because of the beastliness of the crime it deserved to be increased much more.

Where an Army Jawan visited a brothel and while returning kidnapped a four month old female child and later raped the child as a result of which she died, it was held that the accused was guilty under section 201 for throwing the dead body in a well from which it was taken out after about twenty four hours, and under sections 366, 376 and 302, and the maximum penalty of imprisonment for life was given to him for rape.

The first explanation shows that rape by one or more in furtherance of common intention would amount to gang rape. In a case, gang rape was committed by two men and there was unexplained delay of nine days in lodging the complaint. The victim was desirous to marry one of the accused and she admitted that she made the report unwillingly on being pressurised by her parents.

There were various infirmities in the prosecution evidence including the report of the chemical examiner. It was held that the accused were not guilty and the presumption under section 114-A of the Evidence Act was not attracted. In another case, a young widow was returning from a holy place with her seventy years old father-in-law whose all the five sons had died.

One of the three accused persons held back the old man while the others raped her in turn behind the bushes. Her body was never found though her sari was recovered from that very place. It was held that the accused were guilty of committing gang rape.

Where four accused persons were charged with committing gang rape of an unmarried girl after forcing their entry into her house, it was held that in view of the first explanation under section 376, it was not necessary to prove as to who and how many of them had committed gang rape once their common intention was established.

In State v. Shri Narayan the accused who was a relation committed rape on a married rural woman. It was observed that delay in filing complaint was not sufficient to doubt the prosecution version. The prosecutrix and her husband had no strong reason to implicate the accused falsely. The witnesses were natural and their testimony was reliable, and the same was corroborated by medical evidence. The acquittal of the accused was set aside.

Where the victim of a rape was dead and as such not available for examination but the criminal act of the accused was proved by other evidence, it was held that the non-availability of the victim was no ground for acquittal. In State v. Sunder Lal, the Supreme Court observed that the victim of rape, a thirteen year old girl, could not have forgotten the face of the man who had committed the ghastly crime on her.

It was not a case where the victim had a mere fleeing glimpse of the accused. There was light at the place of occurrence. The identity of the accused could be said to be amply established by her evidence and hence his conviction on that basis was proper.

In Balasaheb v. State of Maharashtra, the medical jurist felt that error in case of determination of age based on ossification test may be plus minus three years. In the present case the ossification test showed the age of the prosecutrix to be between fourteen and sixteen years.

It was held that the accused was entitled to the advantage of marginal error based on the ossification test, and since the consent of the prosecutrix to sexual intercourse was proved the accused could not be held guilty of rape. In Santokh Singh v. State of Rajasthan, the thirty-two years old accused was awarded imprisonment for life for raping a defenceless nine years old child.

In Kamal Kishore v. State of H.P., the Supreme Court observed that for imposition of less than the minimum mandatory sentence in rape cases the court has to record ‘adequate and special reasons’. The Court held that the reason that the incident took place about ten years ago and the accused had settled down in life are not such reasons as these apply in many other cases also.

The reason that the victim has since married and settled in life whereas the accused could not marry because of disrepute are also not ‘adequate and special reasons’. The Court, therefore, enhanced the sentence from imprisonment for three years to that for seven years.

In State of Uttar Pradesh v. Pappu, the Supreme Court ruled that the finding that the prosecutrix was not having a good character and was a girl of easy virtue was not a ground for acquittal of accused.

In State of Madhya Pradesh v. Bala, the Supreme Court observed that reduction in rape sentence without assigning satisfactory reasons is not proper and such order is liable to be set aside. The present rape trial had been pending for long. The Court further held that the offer of the rapist to marry the victim or the age of the accused are not relevant reasons for reduction of sentence.

In State of Himachal Pradesh v. Asha Ram, the accused father raped his own minor daughter. The evidence clearly established that both daughters, despite strained relations between their mother and father, were happily staying with their father. The Supreme Court enhanced the sentence of five years’ imprisonment to imprisonment for life and the fine of one thousand rupees to twenty-five thousand rupees.

In Priya Patel v. State of Madhya Pradesh, the Madhya Pradesh High Court was of the view that though a woman cannot commit rape, but if a woman facilitates the act of rape, explanation to section 376 (2) comes into operation and she can be prosecuted for gang rape. The Supreme Court held that a woman cannot be said to have intention to commit rape and so cannot be held guilty of gang rape.

In State of Madhya Pradesh v. Santosh Kumar, the only reason for reducing sentence of the accused who had raped a less than twelve years old minor was that he belongs to Scheduled Tribe. The Supreme Court, allowing the appeal of the State, held that this is not an adequate and special reason for reduction of sentence.

In Dildar Singh v. State of Punjab, the accused teacher raped his minor student. The Supreme Court held that the fact that the accused has a family to maintain and the fact that the prosecutrix has since got married cannot be treated as mitigating circumstances to reduce the sentence.

In Nazir Ahmad v. State of Jammu and Kashmir, the accused was charged with committing rape on her divorced wife by allegedly cohabiting with her for seven or eight years after executing a divorce deed. The fact of execution of divorce deed was not communicated to her and it was only when she filed an application for maintenance, he pleaded case of divorce. He had executed a power of attorney in favour of her after execution of divorce deed where he had described her as his legally wedded wife and empowered her to do all acts including execution of sale deeds etc.

The Jammu and Kashmir High Court held that it could be said that the divorce deed was just a paper writing which was never given any legal effect. Cohabitation with the prosecutrix for seven or eight years continuously as her husband would not amount to rape and he was entitled to acquittal.

In State of Rajasthan v. Madan Singh, the accused raped a girl below twelve years of age for which he was awarded a sentence of less than the minimum mandatory sentence. The Supreme Court held that the reason that the accused was young and the only bread- earner in his family was not adequate and special reasons for imposing less than the minimum punishment and so the order was liable to be set aside.

The measure of punishment in a rape case cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, age of the victim and gravity of the crime. Crimes of violence against women need to be dealt with severely. The socio­economic status, religion, race, caste or creed of the accused or victim are irrelevant in sentencing policy. Protection of society and deterring the criminal is the avowed object of the law and that is to be achieved by imposing an appropriate sentence.

In Rajinder v. State of Himachal Pradesh, the Supreme Court held that absence of injuries on the person of the prosecutrix does not lead to an inference that she consented to sexual intercourse as in the circumstances of the case, she could not be expected to put resistance.

The sexual intercourse by a man with his own wife not being under twelve years of age amounting to rape under section 376 is a non-cognizable, bailable and non- compoundable offence, and is triable by court of session. In any other case, the offence under this section is cognizable, non-bailable and non-compoundable, and is triable by court of session.