Rape and its Penal Amendments

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Offence of Rape is a disgrace that exists from time immemorial. Day by day rape rate in India is increasing much higher than other Crimes. Sexual intercourse of a man with women without her consent amounts to rape. Mere Penetration or slightest touch of penis to vagina amounts to rape. Biologically a woman cannot rape. No women shall lie as no one can convey the truth other than who endure it. Causes for increase in rape cases are due to low conviction rate for the same. The law of rape is not just a few sentences but it is a whole book, wherein we can’t just go to the last part to understand (as observation made by Retd.Joint Commissioner Kiran Bed). As Per National Crime Record Bureau, South Africa has the highest rape rate.

Laws related to rape are of many in nature. It has been enacted whenever it is necessary for preventing the modesty of women and Children. Out of these Laws, Indian Penal Code, 1860(IPC) consist of penal provisions for offence of Rape committed by an individual, Code of criminal Procedure, 1973(Cr.P.C) and Indian Evidence Act, 1872 identifies the convicts by proving their guilt of committing such offence to punish under punitive Acts. Amendments of these Laws are framed from time to time in-order to make strict provisions, so that it demolishes the intention of criminal in committing such crimes. . Now a day, the reported number of Rape cases on higher officials and celebrities are growing and it is clearly identified and punished with the help of both technologies and Medias.

 Law relating to Rape has undergone several changes through The Criminal Law Amendment Act, 1983(“The Act, 1983”). Under which certain provisions of Indian Penal Code, 1860 has been amended. Amendments in provisions for Rape under Indian Penal Code in 1983 is mainly for issues of Minimum punishment for rape cases i.e. Section 376(1), Special rape cases under Section 376(2)(a-g) and Section 376(2)(A-D). IPC amended Section 376(2)(A) which speaks about Marital Rape and Section 376(B-D) speaks about Sexual intercourse not amounting to Rape.

Amendment of Section 376(2)(a,b,c & d) speaks about Custodial Rape. Rape committed by Police Officer, Public Servant, Management or the staffs of Jails or other custodial places and Management or the staffs of hospitals on women in their or their subordinate’s custody will come under this Sections. In Madura rape case, she was just sixteen, raped by two policemen but by circumstantial evidence Court acquitted them. Punishment is of rigorous imprisonment not less than ten years or even leads to Life sentence with or without fine.

Amendment of Section 376(2)(e) speaks about rape of women with the knowledge that she is pregnant. Rape committed by any sane individual knowing she is pregnant comes under the purview of this Section. Punishment for committing such crime is a rigorous imprisonment for a term not less than ten years and may lead to Life sentence with or without fine at the discretion of Judge. Here the burden of proof lies with the accused.

Amendment of Section 376(2)(f) speaks about Rape of girl under age Sixteen. Rape committed by an individual on a girl being an age less than sixteen comes under this Section. Punishment given under this section is rigorous imprisonment not less than ten years which may lead to Life sentence with or without fine. But the Court depending on situation may reduce the minimum punishment to seven to ten years of punishment. There won’t be any extra punishment for child rape causing increased trauma for the girl. Here the burden of proof lies with the accused.

Amendment of section 376(2)(g) speaks about Gang rape. Rape committed by one or more person in a group of individual having the same intention to rape amounts to Gang Rape. Punishment is of rigorous imprisonment not less than ten years and that may extend to Life imprisonment with or without fine.

Law Commission made several reports and reviews on Rape Laws during the case pending between Sakshi Vs Union of India & Others, wherein the Supreme Court insisted Legislature to make appropriate Rape Laws with all promptness which it deserves. This is the time Law Commission drafted its 172nd report in the year 20004 inorder to review rape laws. These recommendations are made to amend laws relating to sexual assault in Section 375,376,354 and 509 of IPC and relevant Sections in Cr.P.C and Indian Evidence Act, 1872. But even this recommendation fails to deal with marital rape.

The Criminal Law (Amendment) Act, 2013 came in to force on 3rd February 2013 inorder to organize the crime and punish in accordance to its effect. This Anti-Rape Law was given assent by President by providing Life Imprisonment and even death punishment for rape convicts. This Act amended IPC, Cr.P.C, Indian Evidence Act and The protection of Children from sexual Offence Act, 2012.

Amendment made in IPC is Under Section 228(A) of IPC, no person should disclose the name of the victim, if so; he shall be punished upto two years with or without fine. Section 354 of IPC was amended by insertion of Section 354A, 354B, 354C and 354D. Section 376A, 376B, 376C, 376D and 376E of IPC. Punishment under Section 376A is increased to not less than 20 years and may extend to Life imprisonment or death punishment. Punishment under Section 376B is not less than two years and may extend to seven years with fine. Punishment under Section 376C is rigorous imprisonment not less than five years and may extend to 10 years with fine. Punishment under Section 376D is rigorous imprisonment not less than 20 years and may extend to life imprisonment with fine and Punishment under Section 376E for Repeated Offender is not less than life imprisonment and may extend to death sentence.

 Except in cases provided under Section 376(2), in all other rape cases the punishment will be from seven to twelve years, even it may lead to Life sentence, with or without fine depending upon  density and variety of crime. In some cases, if Court feels, the punishment could be less than seven years with or without fine. Initially specified time period for punishment was not been mentioned, but now this amendments made it authoritative. These terms of punishment may also vary at the discretion of the Judge.

Amendment made in Indian Evidence Act, 1872 is insertion of Section 53A. This inserted provision says that while the question of consent on the offence under Section 354 and 376 or the attempt to do such offence, the person of the victim’s previous sexual experience with any other person shall not be considered while judging the quality of consent in this case. In accordance to that Section 114(A) of Indian Evidence Act, 18725 clearly says that presumption of rape under Sections 376(2)(a-g) of IPC, if sexual intercourse by accused proved and the consent of the victim is in question and the victim say before the court that she didn’t give any consent, then the court presumes that she had not given any consent. Section 146 was also amended by saying that victim’s previous sexual experience with any person shall not be questioned in cross-examination when the consent is in question by adducing such evidence.

 In accordance to the amendment made, certain Sections in Cr.P.C also deals in support of the Offence of Rape. Section 53(1) of Cr.P.C says that examination of a person believed to be a convict of such offence should be lawful for Medical Practitioner or any person acting in good faith at request of Police officer not less than Sub-inspector to ascertain his conviction. Section 164(A) of Cr.P.C deals with Medical examination of a rape victim and in Section 327(2) insists incamera proceeding for rape victims.

Amendment made in Section 42 of The Protection Of Children From sexual Offences Act, 2012 provide alternative punishment. Before when offence committed under this Act should be punished only under the same but now while dealing with Section 354,375,376, etc, if the person is found guilty of committing such offence shall be punished under this Act or under Sections available under IPC, whichever is higher.

The Criminal Law (Amendment) Ordinance, 2013 has been repealed to The Criminal Law (Amendment) Act, 2013. Any action taken under IPC, Cr.P.C, Indian Evidence Act, 1872,etc, should be taken in accordance with the corresponding provisions of those Acts as amended by this 2013 Act. From the above amendments made in purview of Law related to Rape clearly visualize the intention of the legislature in shrinking the Offences of Rape and its relative crime by bringing hard punitive provisions under various Acts.

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by C.Srivenkatesh Prabhu

Websites Reffered:-

1.   http://en.wikipedia.org/wiki/Rape_in_India

2.  http://www.frontline.in/static/html/fl2023/stories/20031121003109700.htm

3.  http://www.legalserviceindia.com/articles/rape_1.htm

4.  http://ncw.nic.in/PDFFiles/Amendments%20to%20laws%20relating%20to%20women.pdf

5.  http://wcd.nic.in/childact/childprotection31072012.pdf

6. http://www.prsindia.org/uploads/media/Criminal%20Law,%202013/Criminal%20Law%20(A),%202013.pdf

7. http://en.wikipedia.org/wiki/Criminal_Law_(Amendment)_Act,_2013

8. http://timesofindia.indiatimes.com/india/New-anti-rape-law-comes-into-force/articleshow/19359543.cms

9.  http://lawcommissionofindia.nic.in/51-100/report84.pdf

10.  http://www.legalindia.in/rape-laws-in-india/

11.http://www.lawyersclubindia.com/articles/Is-the-Criminal-Amendment-Act-2013-The-Right-Weapon-to-fight-against-Rape–5995.asp#.VMLUvtKUeIx

12.  http://www.unodc.org/unodc/en/data-and-analysis/statistics/crime.html

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13.  http://www.lawcommissionofindia.nic.in/rapelaws.htm