“RAPE” committed by our Legislators with sec. – 375 of IPC

rapeAfter the Nirbhaya Delhi Gang Rape case, “The Criminal Law Amendment Act, 2013” came in to force w.e.f 3rd of Feb, 2013. Now this case was recorded as “Rarest of Rare case” in the history of Indian Judiciary case laws. Our parliament was forced by the street protesters to take immediate initiatives towards making the drastic changes in our criminal laws. By this amendment act, our legislators introduced some new sections and make some amendments in Indian Penal Code, Criminal Procedure Code, Indian Evidence Act and Protection of children from sexual offences act. New Sections 166A, 166B, 326A, 326B, 354A, 354B, 354C, 354D are inserted in Indian Penal Code (45 of 1860), Sections 198B, 357B, 357C are inserted in Code of Criminal Procedure (1973), Section 53A inserted in Indian Evidence Act (1872), whereas several amendments to some sections in these acts were also made by this amendment act. Section 375, 376, 376 A, 376 B, 376 C, 376 D substituted with new one and a new section 376 E was inserted through the same amendment act. Section 375 of IPC (which provides the definition of Rape) goes with drastic change through this amendment act. By this amendment, the definition of Rape was totally changed and its meaning was also changed. Our Legislators put excessive efforts to make amendment in section 375 and after reading the amended definition of rape given under section 375 of IPC, one is compelled to think that what has happened to the art of drafting and where it has gone? Are we so incapable to even draft a law, which make some sense? Interpretation of Statute by the courts is also a great art, which removes the ambiguity in the wording of the statutes giving different meaning in changing situations. But it does not mean that we leave a Patent ambiguity in the statutes and confer a duty upon the Judges & courts to interpret it and give proper meaning to the statute to show the proper object of the legislator. The patent ambiguity should always be removed while making the statute only and it should be the exceptional case, where a latent ambiguity shows from the wording of the statute in the changing circumstances. In that case, it should be the duty of the court to make every endeavour to interpret the statute under the object of the legislator and to make the statute best fit in that every changing situation.
Before passing the act, the definition of Rape is changed and the name of offence was made “Sexual Assault” which replaces the word “Rape” and it is common for man to man, man to woman, woman to woman and woman to man but when the ordinance converts in to act 2013, the word Rape re- changed with the word “sexual assault” & the offence remains punishable for man towards woman only.
This new definition of Rape is criticized by me at some words used by the Legislators unnecessarily.
1. In the new definition, the legislators uses the words, “Vagina, Mouth, Urethra or Anus” in clause (a) and “Vagina, Urethra or Anus” for the clause (b), (c), (d) of section – 375. Before interpreting this definition, we should firstly come to know the proper meaning of these words specifically used by the legislator in the statute. As per Oxford dictionary, Wikipedia and other national & international dictionaries, Urethra is a layer of skin inside the Vagina, means Urethra is covered by the outer layer of Vagina. According to my view, there is no need to use the word “Urethra” specifically. Vagina covers this part in itself as no penetration is possible physically without penetrating anything in to Vagina but to Urethra only (Urethra always comes after the Vagina).
2. Secondly, under section 375 (c), the Legislator criminalize the art of manipulation under the definition of Rape. In this case, now it becomes very difficult to distinguish between “Rape” and “Attempt to Rape” as attempt to rape is already a complete offence in itself and it should be punishable only under section 511 of IPC r/w section 376 of same code and not under the category of Rape. The reason is that, on the one hand we are trying to make the Rape Law as a hard law and on the other hand we are making the no difference between the main offence and attempt to that offence. Even in IPC, there is lesser punishment for attempt to murder as comparable to the main offence of murder. Another reason is that, by bringing the offence of “manipulation only” under the category of Rape, it broadened the ambit of act of Rape unnecessarily on the one hand and provides hard punishment for the less gravity offence on the other hand.
3. Thirdly, the Legislator uses the word, “any part of the body of such women”. It is quite funny to imagine that is there any other part left apart from Vagina, Urethra, Mouth or Anus where the penetration can be possibly made for the sexual purpose. What is the intention of Legislator by using these words here, is the Legislator want to say ear, nose or any other part? It is a bad drafting. Here it seems that Legislator had put excessive and unnecessary efforts to just make the offence of Rape harder. And these excessive efforts made the statute patent ambiguous.
4. Fourthly, the Legislator uses the words, “or any other person” in each four clauses of section 375. Earlier Gang Rape is defined under clause (g) of section 375. But after the amendment of 2013, it is separately defined under section 375 D. The requirement of minimum persons under section 375 D is two, for converting the offence of Rape in to Gang Rape and there is no need of sexual penetration by the both accused but only assistance of one person to the main culprit is enough to make them offender under this section. By using the words “any other person” the Legislator himself makes the both definitions of section 375 and section 375 D as overlapping upon each other. It is a big defect in the definition of Rape given under section 375 as it creates ambiguity in the statute that if one person assists to the offender to commit the offence of Rape, then whether they will be convicted under section 375 or under section 375 D (i.e. which provides punishment for gang rape).
As per above analysis of the amended definition of Rape given under section 375, it is evident clear that how efficient our Legislator are. It must be carefully examined before drafting any statute as the impact of bad drafting may results in to grave consequences. I suggest that there is a need of more involvement of Common man specially Law Graduates either practicing or Teaching or Research fellows in the law making process and they should come forward to give their suggestions. Legislators should make this involvement easy and friendly and must be in a transparent manner which serves many purposes with single act i.e. involvement of common man in law making process, improvement of efficiency, uplift of backward society, improvement in confidence in common man & improvement in education etc. by just giving them suggestive powers only.
This new definition of Rape is badly drafted and it looks by the above analysis that Legislator has committed Rape with section 375 and unfortunately there is no punishment for this offence in Indian Laws but some innocents or less offenders may amounts to harder punishment due to this ambiguity.

Writer:
Dimple Jindal (Advocate)
(M.B.A, LL.B, B.Com)
Distt. Courts, Barnala.

Rape: A Curse On Women Soul

 Neha Malik

“Rape is highly reprehensible, both in a moral sense and in is almost total contempt for the person integrity and autonomy of female victim and for the latter’s privilege of choosing those with whom intimate relations are to be established”

Byron R. White J., the Supreme Court , United States of America

Women the most beautiful creation of god, in India people even worship girls made reservation to give them equal status but does women get equal treatment? Are they really treated equally?

A story of Bandit Queen depicting the scenario of male dominant society of India. Initially not a dacoit but a simple village girl who got exposed to the unrivaled truth of the Indian society, Phoolan Devi started her journey to become the Bandit Queen. She was married to a man double of her age. She was beaten and rape by him. Later she was thrown out of the village-accused of luring boys of the upper caste. She was arrested by the police and subjected to indignation and humiliation. Was also kidnapped and raped by the leader of dacoits and later by the leader of a gang of Thakurs- who striped her naked and paraded her in front of the entire village. This is truly one story that shows the apathy of the existing society.

Introduction

In the present article the author is going to discuss about the statutory definition about the rape and its interpretation, few judgments which are going to help in understanding the law in practice. The author is also going to discuss about the social obstacles in dealing with such a sensitive issue.

Defining ‘RAPE’

Rape in dictionary defines as the crime of forcing a woman to submit to sexual intercourse against her will. In India, rape is defined in the following manner;

“a man is said to commit ‘rape’ who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-

A. Against her will.

B. Without her consent.

C. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

D. With her consent, when the man knows that 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.

E. 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.

F. With or without her consent, when she is under sixteen year of age.”

 

The only exception to this rule is that sexual intercourse by a man with his wife, the wife not being under fifteen years of age. From the above provided definition, it is clear that under which circumstances a sexual intercourse will amount to rape. The essential ingredients of the offence of rape:

1. There must be a sexual intercourse with a woman by a man

2. Such a sexual intercourse should be done under any of the above circumstance

Sexual intercourse means penetration of male organ into that of female. To explain Section 375, the Supreme Court through its various judgments made it clear that even slightest or partial penetration of the male organ within the labia majora or the vulva or pudenda is sufficient to constitute ‘sexual intercourse’ . The court in other cases also said that the depth of penetration is immaterial . The slightest degree of penetration is enough . Penetration, not ejaculation, is the sine non qua for the offence of rape . Therefore to prove that a rape is committed it is not necessary to prove completion of sexual intercourse by the emission of seed. Even the partial penetration is enough to attract section 375.

 

Judicial approach towards ‘rape’

The famous Mathura rape case , which led to the amendment of the law. The Criminal Law Amendment Act, 1983 has made a statutory provision in the face of Section.114 (A) of the Evidence Act, which states that if the victim says that she did not consent to the sexual intercourse, the Court shall presume that she did not consent. The amendment was required because of the judgment given by the courts in this case. In this case Mathura a sixteen year old girl was raped by two policemen in the compound of Desai Ganj Police station in Chandrapur district of Maharashtra. When case came for hearing in the session’s court the court found the defendants not guilty. It was stated that because Mathura was ‘habituated to sexual intercourse,’ her consent was voluntary; under the circumstances only sexual intercourse could be proved and not rape. On appeal the Nagpur bench of the Bombay High Court set aside the judgment of the Sessions Court, and sentenced the accused to one and five years imprisonment respectively. The Court held that passive submission due to fear induced by serious threats could not be construed as consent or willing sexual intercourse.

 

However, the Supreme Court of India again acquitted the accused policemen. The Supreme Court held that Mathura had raised no alarm; and also that there were no visible marks of injury on her person thereby suggesting no struggle and therefore no rape. In Mohd. Habib v. State , the Delhi High Court acquitted a man who raped a seven year old girl, asserting that there were no marks of injury on his penis. The Court refused to take cognizance of the bite marks on the victim’s person and the fact that she suffered a ruptured hymen on account of the sexual assault. Another classic example of the judicial pronouncements in rape cases is the case of Bhanwari Devi , wherein a judge remarked that the victim could not have been raped since she was a dalit while the accused hailed from an upper caste- who would not stoop to sexual relations with a dalit.

 

In yet another instance of conscience stirring case of Sakina , Sakina- a poor sixteen year old girl from Kerala, who was lured to Ernakulam with the promise of finding her a good job, where she was sold and forced into prostitution. There for eighteen long months she was held captive and raped by clients. Finally she was rescued by the police- acting on a complaint filed by her neighbour. With the help of her parents and an Advocate, Sakina filed a suit in the High Court- giving the names of the upper echelons of the bureaucracy and society of Kerala.

The suit was squashed by the High Court, while observing that it is improbable to believe that a man who desired sex on payment would go to a reluctant woman; and that the version of the victim was not so sacrosanct as to be taken for granted.

Whereas, in State of Punjab Vs. Gurmit Singh , the Supreme Court has advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the Court should not describe her to be of loose character. The Supreme Court has in the case of State of Maharashtra Vs. Madhukar N. Mardikar , opined

“…the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard.”

 

Victim remains victim

In the present society where the offences against women are on the rise- when young girls are raped by their doctors, by their close relatives, by presidential guards in broad daylight, the definition of rape need to be wider. Present law does not even recognise marital rape which is increasing in the society. If there is forced penetration of objects and parts of the body into the vagina and anus; and forced oral or anal intercourse than that is not considered as rape.

Adding to this, Section 155(4) of the Evidence Act, which indirectly helps the defence side to make the victim weaker by asking her about past sexual history of her life. In most of the rape cases victim does not have justice because of the poor quality of investigations. The reason behind this is gender bias society and corrupt police officer who even refuse to lodge the FIR against rich and powerful persons of society. The manner in which some courts have interpreted the law or assessed the evidence has often proved to be an obstacle also. Inspite of Supreme Court judgments to the contrary, lower court judges often insist on evidence of physical resistance or marks of injuries to hold that a woman has not consented. A woman’s evidence without corroboration is not considered sufficient. The long time that is taken to complete a rape trial often by allowing senseless adjournments; and the giving of evidence by the victim in the presence of the accused and the harsh cross examination in the Court are some other major obstacles.

As observed by Justice Saghir Ahmad, “Unfortunately a woman in our country belongs to a class or group of society who are in an disadvantaged position on account of several social barriers and impediments and have therefore, been victims of tyranny at the hands of men with whom they, unfortunately, under the Constitution enjoy equal status.”

Conclusion:

After studding the various judgment and laws related to the rape the author came to the conclusion that there is a need to bring change in the courts and legislature. The punishment that is mention in IPC, which normally ranges from one to ten year of rigorous imprisonment with very small fine is not sufficient to stop the increasing crime of rape. If the accused is powerful or rich the case is not even filed against them by the police, if filed then also they get no punishment by paying huge amount of money. The court also need to concentrate on the fact that in some cases the victim is beaten and tortured so badly that they even loss their mental balance. Even the small children who do not even know the meaning of rape are facing this problem. Therefore, in the best interest of society, these criminals should be sentenced to life imprisonment. However, if they truly have realized their mistake and wish to return to society, the Court and jail authorities may leave such men on parole; but only after they have served a minimum of half the sentence imposed on them.

It is clear that sexual offences are increasing day by day, but if death sentence is given to such convicts then no doubt that the graph of rape cases will come down. Studying the laws, the process, the application of the laws, has made one thing very clear that the entire structure of justice needs an over haul, otherwise the victim shall no longer the woman, but HUMANITY.