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PSA Pillai: Criminal Law,12th Edition/PSA Pillai: Criminal Law,12th Edition/CHAPTER 40 Sexual Offences

CHAPTER 40

Sexual Offences

(Indian Penal Code 1860, Sections 375 to 377)

INTRODUCTION
The word 'rape', which is derived from the Latin term rapio, means 'to seize'. 'Rape' literally means a forcible
seizure. 'Rape' or raptus, in its simplest form, signifies 'the ravishment of a woman against her will or without
her consent or with her consent obtained by force, fear or fraud' or the carnal knowledge of a woman by
force against her will'.1
Section 375 of the defines rape. It is an unlawful sexual intercourse between a man and a woman without the
woman's consent or against her will under any of the seven circumstances enumerated in section 375 of
the IPC .
However, the original s 375 and the provisions providing punishment therefor have witnessed major
amendments, rather overhauling, during 19832 and 2013.3Both the Amendment Act s were triggered by
peculiar instance of custodial rape4 and of brutal gang rape on young woman in a moving bus in the capital of
the country,5 respectively.
The amendments carried out in the year 1983 overhauled the law relating to rape. 6 These amendments were
a result of countrywide criticism by all sections of society including parliamentarians, women and social
organisations against the judicial pronouncement of the Supreme Court in Tukaram v State of Maharashtra ,7
which is popularly referred to as the Mathura rape case. In this case, Mathura, an 18 year-old Harijan orphan
girl, was, along with her brother and another, brought to the police station for recording statement. After
statements were recorded, the accused police constables asked Mathura to wait in the police station and told
her brother and another to move out. Immediately thereafter, one of the accused raped her in the police
station and another, who could not rape her as he was in a highly intoxicated condition, sexually molested
her.
The trial court acquitted both the accused on the ground of the tacit consent of the victim. The Bombay High
Court, on appeal, reversed the trial court's order of acquittal. It held one of the accused guilty of rape, and the
another for molesting her, and awarded rigorous imprisonment for five years and for one year, respectively.
The High Court had observed that there was a difference between 'consent' and 'passive submission', and
held that mere passive or helpless surrender of the body and its resignation to other's lust, induced by
threats or fear, cannot be equated with the 'desire or will', nor can furnish an answer by the mere fact that the
sexual act was not in opposition to such desire or volition. The Supreme Court, on appeal by the accused,
however, reversed the conviction. It held that Mathura could not have been overawed in the police station,
especially since her relatives were waiting outside. It observed that Mathura was subjected to no fear of
death or hurt, which may have led her to submit to the act . Further, no injuries were found on Mathura after
the incident and the absence of injuries indicated that the alleged intercourse was a peaceful affair. The
Supreme Court disbelieved Mathura's version that she put up a stiff resistance and shouted loudly for help.
The court described it as a 'tissue of lies' and a concoction on her part. It acquitted both the accused.
To nullify the effect of the Supreme Court judgment in the Mathura case and other cases of that period,
extensive amendments were introduced to the IPC and to the Indian Evidence Act 1872. Sections 376A to
376D were added to the IPC and s 114A was inserted in the Evidence Act.
On the late evening of 16 December 2012, a young girl was gang raped in New Delhi in a moving public
transport bus in the presence of her friend and thereafter she and her friend were thrown out of the bus. The
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victim died subsequently. The incidence of brutal gang rape led to a nation-wide protest against the culprits.
The Government of India, after giving an anxious consideration to the need to review the existing rape laws
and enhance punishment for brutal sexual assaults, appointed a Committee (headed by the Late Justice JS
Verma). The Committee was asked to look into possible amendments to criminal law for ensuring quicker
trial of, and harsher punishments to, persons accused of committing sexual assault of extreme nature on
women. The Committee was mandated to submit its report within thirty days from the date of Notification. 8
The Committee in its Report9 not only proposed revision and substitution of sections 375 , 376, and 376A to
376D of the IPC ,10 but also recommended insertion of a few new ones11 therein, for making the law relating
to sexual assault on women and girls more effective and deterrent. 12Most of these recommendations were
given legislative effect through the Criminal Law (Amendment) Act 2013 13 and were inserted at appropriate
places in the IPC.
Section 375 defines 'rape', while s 376 provide for punishment for the offence of 'rape'. Sections 376A to
376E deal with certain forms of sexual assaults on woman and stipulate punishment therefor. Section 377
deals with unnatural offences.

PART A - RAPE
Section 375. Rape.--A man is said to commit "rape" if he;--

1a)  penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a
woman or makes her to do so with him or any other person; or
1b)  inserts, to any extent, any object or a part of the body, not being the penis, into the
vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
1c)  manipulates any part of the body of a woman so as to cause penetration into the
vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any
other person; or
1d)  applies his mouth to the vagina, anus, urethra of a woman or makes her to do so
with him or any other person,
under the circumstances falling under any of the following seven descriptions-- First.--Against her will.
Secondly.--Without her consent.
Thirdly.--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.
Fourthly.--With her consent, when the man knows that he 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.
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.
Sixthly.--With or without her consent, when she is under eighteen years of age.
Seventhly.--When she is unable to communicate consent.
Explanation 1.--For the purposes of this section 'vagina' shall also include labia majora.
Explanation 2.--Consent means an unequivocal voluntary agreement when the woman by words, gestures or
any form of verbal or non-verbal communication, communicates willingness to participate in the specific
sexual act:
Providedthat a woman who does not physically resist to the act of penetration shall not by reason only of that
fact, be regarded as consenting to the sexual activity.
Exception 1.--A medical procedure or intervention shall not constitute rape.
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Exception 2.--Sexual intercourse or sexual act s by a man with his own wife, the wife not being under fifteen
years of age, is not rape.

ESSENTIAL INGREDIENTS
Section 375 defines the offence of rape. The revised section 375 has widened the definition of rape. It, unlike
its earlier version, not confined 'rape' merely to penile-vaginal penetration (in the circumstances specified
thereunder), but is also extended to (i) penile-urethra, penile-oral, or penile-anal penetration; (ii) object-
vaginal, object-urethra, or object-anal insertion; (iii) insertion of a part of body, other than the penis, in the
vagina, the urethra or anus of a woman; (iv) manipulation of any part of body of a woman for causing vaginal,
urethral or anal penetration, and (v) application by a man of his mouth to the vagina, urethra or anus of a
woman or making her to do so with him or any other person.
Nevertheless, the offence of 'rape' retains, in essence, the idea of coercive non-consensual (as well as
consensual in certain situations) 'sexual intercourse',14 in an extended form, between a man and a woman in
a set of specified circumstances. Its essence lies in the 'penetration', howsoever slight, of the penis, or
'insertion' of any object or part of body (other than the penis), or manipulation of any part of the body of a
woman for penetration into the vagina, urethra, or anus of a woman.
The essential ingredients of the offence of rape are: (i) there must be sexual intercourse, as understood in
terms of the provisions of s 375(a) to (d), with a woman by a man; (ii) such a sexual intercourse must be
under any of the seven circumstances: (a) against her will; (b) without her consent; (c) with consent obtained
under fear of death or of hurt; (d) consent given under misconception of fact that the man is her husband; (e)
consent given by reason of unsoundness of mind, intoxication or under influence of any stupefying or
unwholesome substance; (f) with a woman under eighteen years of age, with or without her consent; or (g)
with a woman who is unable to communicate her consent.
A careful look at these 'circumstances' reveals that the first two clauses, namely, first and secondly, which
deal respectively with sexual intercourse with a woman 'against her will' and 'without her consent',
contemplate a conscious woman capable of exercising her will or giving (or withholding) her consent for the
sexual act. The next two clauses, namely, thirdly and fourthly, which deal respectively with sexual intercourse
with the consent of the woman obtained by putting her (or a person in whom she is interested in) in fear of
death or hurt, or making her to believe that she is his wife, contemplate consent of a woman who is
conscious but either afraid or under a misconception. The last two but one clauses, i.e. fifthly and sixthly,
deal with the consensual sexual intercourse with a woman who is, due to either insanity or immaturity,
mentally incapable of exercising her will or giving consent for the sexual intercourse. The last clause, i.e.
seventhly, makes sexual intercourse with a woman who is unable to communicate her consent for sexual act,
a rape.

'Sexual Intercourse'
Sexual intercourse, as perceived by s 375, IPC, implies 'penetration', to any extent, of the penis into the
vagina, mouth, urethra or anus of a female. The phrase 'to any extent', used in the said provision, makes it
evident that mere slightest or partial penetration of the male organ within the vagina, mouth, urethra or anus,
as the case may be, is sufficient to constitute 'sexual intercourse'. 15 The depth of penetration of the penis is
immaterial.16 Mere fact that the private part of the accused did enter into the person of the woman is enough
to constitute rape. It is not essential that there should be injuries on her private part 17 or her hymen should
rupture18 or he should ejaculate. Penetration, not ejaculation, is the sine non qua for the offence of rape.19
Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. 20 It is, therefore,
not necessary to prove the completion of sexual intercourse by the emission of seed. Intercourse is deemed
complete upon proof of penetration only.
The Supreme Court, in State of Uttar Pradesh v Babulnath ,21 while delving into the essential ingredients of
rape, observed:

... [T]o constitute the offence of rape it is not at all necessary that there should be complete penetration of the male
organ with emission of semen and rupture of hymen. Even partial or slightest penetration of the male organ within the
labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the
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private part of the victim would be quite enough for the purpose of Sections 375 and 376 of Indian Penal Code ,
1860. That being so it is quite possible to commit legally the offence of rape even without causing any injury to the
genitals or leaving any seminal stains.22

In the backdrop of hitherto judicial pronouncements and trend, it is seemingly obvious that any slight non-
penile-vaginal penetration, referred to in s 375 of the IPC, 23 like in the penile-vaginal penetration,24 will be
sufficient to meet the statutory requirement of 'insertion to any extent'.

'Against Her Will'

The first clause of s 375 stipulates that a man is said to have committed rape, if, he has sexual intercourse
with a woman 'against her will'. The expressions 'against her will' and 'without her consent' appear
synonymous. The terms 'will' and 'consent' often intermingle. An act done 'against will' can be said an act
done 'without consent'.25An offending act is said to be done 'against will' of a woman when it is done despite
her resistance and opposition.26 When something is done against the will of the person, the element of active
opposition is absent. 'Will' and 'consent', in spite of overlapping, are distinct. Though every act done 'against
the will' of a person will also mean that it is done 'without the consent' of the person, an act done 'without the
consent' of a person does not necessarily mean 'against the will'. 'Without consent' would denote an act
being done in spite of opposition of the person. The element of active opposition will not be present when
something is done against the will of the person.27

'Without Her Consent'

The second clause of s 375 stipulates that if a man has sexual intercourse with a woman 'without her
consent', then it amounts to rape. Consent involves a voluntary act and conscious acceptance of what is
proposed to be done by another and concurred in by the former. It implies the exercise of free and
untrammeled right of the former to forbid or withhold what is being consented to. 28 Consent is an act of
reason accompanied by deliberation,29a mere act of helpless resignation in the face of inevitable compulsion,
non-resistance and passive giving in, cannot be deemed to be 'consent'. Consent means active will in the
mind of a person to permit the doing of the act of and knowledge of what is to be done. It involves voluntary
participation. There has to have voluntary agreement on part of the woman to willingly participate in the
specific sexual act communicated to him by either words, gestures or any form of verbal or non-verbal
communication. Mere absence of physical resistance to the act of penetration by itself cannot be taken as
her consent for the sexual act.30
Consent supposes three things-a physical power to act, a mental power of acting, and a free and serious use
of them.31Consent for the purpose of s 375 requires voluntary participation not only after the exercise of
intelligence based on the knowledge of the significance and moral quality of the act but also after having fully
exercised the choice between resistance and assent.32
Consent of a woman, to be an exonerating factor, must be 'unequivocal and voluntary' for participating in the
specific sexual act. Withdrawal of the consent during the sexual act does not make the man guilty of rape.
When a woman of full age gives her consent to a man for sexual intercourse prior to penetration, it is not
rape, no matter how much force is subsequently used by him, no matter how much reluctance is developed
by her subsequent to the penetration.33 In this connection, it is, however, necessary to recall s 90 of the IPC,
which states as to what does not amount to 'consent' under the Code. It runs as under:
Section 90. Consent known to be given under fear or misconception.--A consent is not such a consent
as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a
misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was
given in consequence of such fear or misconception; or
Consent of insane person.--if the consent is given by a person who, from unsoundness of mind, or
intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or
Consent of child.--unless the contrary appears from the context, if the consent is given by a person who is
under twelve years of age.
So, in a way, cll 2, 3, 4, 5 and 6 of s 375 only reinforce and repeat the provisions of s 90. 34
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Apart from these general provisions with regard to consent, s 114A of the Evidence Act, 1872, which was
introduced in 1983 and revised in 2013, provides a presumption as to absence of consent in certain
prosecution for rape.35 According to this section, where sexual intercourse 36 by the accused is proved, and the
question is whether it was without the consent of the woman and she states in her evidence before the court
that she had not given consent, the court has to presume that consent was not given by her. This
presumption holds good until it is rebutted by the accused. 37
In State of Maharashtra v Madhukar Narayan Mardikar ,38 the respondent was a police inspector, who had
allegedly gone to raid a hutment as a measure against illicit trade in liquor. The respondent who was in
uniform demanded to have sexual intercourse with one Banubi who was present in the hutment. On her
refusal, he tried to do so by force. She resisted his attempt and raised a hue and cry. On her complaint, a
departmental enquiry was initiated against the respondent. The respondent's plea was that Banubi was an
unchaste woman and hence her evidence would be extremely unsafe to rely upon. With regard to that
contention, the Supreme Court observed:

Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. So also it is
not 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 it against her wish. She is equally entitled to the protection of law. Therefore, merely
because she is a woman of easy virtue, her evidence cannot be thrown overboard.39

A woman, who, prior to the alleged non-consensual sexual intercourse, has lost virginity to someone or has
been promiscuous in her sexual behaviour, has also a right to refuse to submit herself to sexual intercourse
with anyone and everyone. She is not a vulnerable object or prey for being sexually assaulted by anyone and
everyone. Even if she has lost her virginity earlier, it cannot certainly give a license to any person to rape her.
Her virginity or promiscuous character is a totally irrelevant issue in a case of rape. 40 Sexual intercourse with
a woman of loose moral character or who is sexually immoral 'without her consent' or 'against her will',
therefore, amounts to rape.41 The fact that the rape victim is used to sexual intercourse or is promiscuous
does not necessarily warrant the view that she was a consenting party to sexual intercourse. 42

'Consent Obtained under Fear of Death or of Hurt'

Clause (3) of s 375 stipulates that consent obtained by putting the woman or any person in whom she is
interested, in fear of death or of hurt is not consent and hence, the act would amount to rape. The fear which
led to her consent for sexual intercourse must be of death or of hurt to herself to another person she is
interested in. Consent obtained by any fear other than of death or of hurt even to her or to a person in whom
she is interested does not fall under the clause. The fear of death or of hurt addressed to a person other than
the prosecutrix herself or a person she is interested in does come under the clause.

'Consent Obtained by Fraud'

By virtue of cll (4) and (5) of s 375 consent obtained by fraud is no consent. For instance, if a woman gives
her consent for sexual intercourse on the bona fide assumption that a professional medical practitioner,
through sexual intercourse, is medically treating her ailment; or a girl gives her consent for sexual intercourse
to a professional singer teacher on the assumption that he, through sexual intercourse, is treating her
breathing to enable her to sing properly; or, if a woman consents for sexual contact under the belief that he is
her lawfully married husband, then such consent is not a valid consent under law. To attract the provisions of
cl 4, it is, therefore, necessary to prove that the consent was given by the prosecutrix under belief that the
accused was another person to whom she believed herself to be married. When consent is given by her for
sexual intercourse in the belief that she had been married to the accused, the clause is not attracted. 43

Is Promise to Marry the Victim a Misconception of Fact Vitiating her Consent?

If a full-grown girl consents to the act of sexual intercourse on a promise of marriage and continues to
indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part and not an act
induced by misconception of fact. Section 90 of the IPC cannot be put in service to pardon the act of the
girl and fasten criminal liability on the perpetrator, unless the court can be assured that from the very
inception the accused never really intended to marry her. 44 Consent given by the prosecutrix to sexual
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intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later
date cannot be said to be given under a misconception of fact. 45 Sexual intercourse with a girl above
sixteen years, who voluntarily agrees for sexual intercourse on assurance of marriage, does not amount to
rape.46 However, consent for sexual intercourse obtained by a false promise to marry is not a true
consent.47A deliberate representation by the accused with a view to eliciting the assent of his victim without
having any intention or inclination to marry her vitiates the consent. Hence, consent for sexual intercourse
induced by the promise of marriage is not true consent, if it is proved that the accused from the very
inception of making the promise had no intention to marry her. If his promise to marry is not false and has
not been made with the sole intention to seduce the prosecutrix to indulge in sexual act s, the sexual acts
premised on such consent do not amount to non-consensual. 48 Consensual sexual intercourse without any
assurance of marriage does not amount to rape.49 Mere breach of promise to marry without mala fide
intention, however, does not amount to deception. 50 Invasion of person of prosecutrix, by indulging in
sexual intercourse with her on a false promise of marriage, in order to appease his lust, all the time
knowing that he would not marry her, is an act of braze fraud on his part. The consent obtained on such a
promise is not a valid consent in law.51
A case of a married man, who enacts remarriage with another woman, without disclosing the fact of his
earlier marriage, in a holy place and continues living with her as her husband and cohabits with her, falls
under fourthly of s 375. In such a situation, the essence of the clause, i.e. the man knows that he is not
her husband and the woman has been consenting for sexual intercourse believing that he is her husband,
is met with. Such a sexual intercourse becomes non-consensual and it amounts to rape. 52
A promise to marry after non-consensual sexual intercourse, however, does not absolve the perpetrator
from liability. His subsequent promise to marry is of no consequence. 53

Consent of an Insane or Intoxicated Woman

In Tulshidas Kanolkar v State of Goa ,54 wherein the accused ravished a mentally-challenged girl on
occasions more than one that resulted in her pregnancy, the apex court categorically held that consent given
by mentally challenged girl cannot be said to be 'consent' for sexual intercourse as she is incapable of
understanding the consequences of her consent. It observed:

An act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance or passive giving in
when the faculty is either clouded by fear or vitiated by duress or impaired due to mental retardation or deficiency
cannot be considered to be consent as understood in law. For constituting consent, there must be exercise of
intelligence based on the knowledge of the significance and the moral effect of the act . A girl, whose mental faculties
are undeveloped, cannot be said in law, to have suffered sexual intercourses with consent. 55

It also ruled that a rapist by sexually assaulting a mentally underdeveloped girl not only physically ravishes
her but also exploits her mental non-development and helplessness.
Similarly, sexual intercourse under influence of drink cannot be said to be intercourse with consent. 56

Consent of a Woman under Eighteen Years of Age

Clause (6) provides that sexual intercourse with a woman under eighteen years of age will amount to rape,
whether it is done with or without her consent.57 This is because the consent of a minor is no consent. Once it
is proved that the girl was below eighteen years of age, the question of her consent becomes wholly
irrelevant and sexual intercourse with her amounts to rape irrespective of her consent. 58

Marital Rape--An Exception to 'Rape'

The Exception 2 to s 375 states that non-consensual sexual intercourse by a man with his own wife, if she is
over fifteen years, does not amount to rape. It, thus, keeps outside the ambit of 'rape' a coercive and non-
consensual sexual intercourse by a 'husband' with his 'wife' (above fifteen years of age) and thereby allows a
'husband' to exercise, with impunity, his marital right of (non-consensual or undesired) intercourse with his
'wife'. It is believed that the husband's immunity for marital rape is premised on the assumption that a
woman, on marriage, gives forever her consent to the husband for sexual intercourse. Her husband has the
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right to have sexual intercourse with her, whether she is willing or not, and she is under obligation to
surrender or submit to his will and desire. It also aims at the preservation of family institution by ruling out the
possibility of false, fabricated and motivated complaints of 'rape' by 'wife' against her 'husband' and the
pragmatic procedural difficulties that might arise in such a legal proceeding. 59
However, sexual intercourse with a wife, whose marriage with him is void as he was already married and had
a living spouse and who was aware of the fact of the first marriage, amounts to rape. 60
Further, non-consensual sexual intercourse, in terms of the acts mentioned in s 375 (a) to (d), IPC, by a
person with his own wife who is, under a decree of separation or otherwise, is living separately is made an
offence under the IPC.61 The punishment provided for non-consensual sexual intercourse by a man with his
wife living separately is, however, compared to that is provided for consensual or non-consensual sexual
intercourse with his own wife when she is below the age of fifteen years of age, which, by virtue of exception
2 to s 375 of the IPC, amounts to rape, is very mild. 62 No court is empowered to take cognizance of the
offence of sexual intercourse by husband upon his wife during separation where the persons are in a marital
relationship, except upon prima facie satisfaction of the facts which constitute the offence upon a complaint
having been filed or made by the wife against the husband. 63

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 rigorous imprisonment of either description for a term which shall not be less
than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.
1)  Whoever,--
1. being a police officer commits rape--
1. within the limits of the police station to which such police officer is appointed;
or
1. in the premises of any station house; or
1. on a woman in such police officer's custody or in the custody of a police
officer subordinate to such police officer; or
1.
1. being a public servant, commits rape on a woman in such public servant's custody
or in the custody of a public servant subordinate to such public servant; or
1. being a member of the armed forces deployed in an area by the Central or a State
Government commits rape in such area; or
1. 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, commits rape on any inmate of such jail, remand home, place or
institution; or
1. being on the management or on the staff of a hospital, commits rape on a woman in
that hospital; or
1. being a relative, guardian or teacher of, or a person in a position of trust or authority
towards the woman, commits rape on such woman; or
1. commits rape during communal or sectarian violence; or
1. commits rape on a woman knowing her to be pregnant; or
1. commits rape on a woman when she is under sixteen years of age; or
1. commits rape, on a woman incapable of giving consent; or
1. being in a position of control or dominance over a woman, commits rape on such
woman; or
1. commits rape on a woman suffering from mental or physical disability; or
1. while committing rape causes grievous bodily harm or maims or disfigures or
endangers the life of a woman; or
1. commits rape repeatedly on the same woman,
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shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which
may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's
natural life, and shall also be liable to fine.
Explanation .--For the purposes of this sub-section,--

2a)  "armed forces" means the naval, military and air forces and includes any
member of the Armed Forces constituted under any law for the time being in force, including
the paramilitary forces and any auxiliary forces that are under the control of the Central
Government or the State Government;
2b)  "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;
2c)  "police officer" shall have the same meaning as assigned to the
expression 'police' under the Police Act, 1861;
2d)  "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 an institution
called by any other name, which is established and maintained for the reception and care of
women or children.
Section 376 provides the punishment for rape. It consists of two sub-sections. The first sub-section is in
respect of rape generally. The second sub-section deals with the instances of other forms of rape, which are,
compared to the former, are subject to severe punishment.
According to the first sub-section, a person who is convicted of the offence of rape shall be punished with
rigorous imprisonment for a term not less than seven years, but which may extend to imprisonment for life
and fine.
Sub-section (2) of s 376 deals with the instances of:

2)  Rape committed by a police officer64 on a woman in his custody65 or in the custody of
a police officer subordinate to him, within the limits of the police station where he is appointed
or in the premises of any station house whether or not situated in the police station to which he
is appointed.
2)  Rape by a public servant,66 who rapes a woman when she was in his custody or in
the custody of a public servant subordinate to him.
1)  Rape committed by a member of armed forces67 in the area of his deployment.
1)  Rape committed on the inmates of any jail, remand home, place of custody or
women's or children's institution,68 by a person on the management or staff of such jail, remand
home, place of custody, or institution, etc.
1)  Rape of a woman in a hospital by a person on the management or staff of the
hospital.69
1)  Rape committed by a relative, guardian or teacher or a person in position of trust or
authority towards the woman.70
1)  Rape during communal or sectarian violence.71
1)  Rape of a pregnant woman.--In order to ensure conviction of the accused it is
necessary for the prosecution to prove that the prosecutrix was pregnant when the accused
raped her and that he knew that she was pregnant. 'Mere possibility' or 'full possibility' of the
accused knowing that she was pregnant when he had sexual intercourse with her is not
sufficient to convict him.72
1)  Rape of a woman under sixteen years of age.--The provision is based on the
presumptive premise that a girl below sixteen years of age is legally not in a position to give her
consent for sexual intercourse. Consensual intercourse, therefore, amounts to (statutory) rape.
Her consent in no way can absolve the accused. Consent of the prosecutrix becomes totally
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irrelevant.73 The age of the prosecutrix at the time of so-called consensual sexual intercourse,
and not her consent therefor, becomes a matter of crucial consideration.
10)  Rape on a woman, who is incapable of giving consent.-- This clause was inserted in
2013 to probably cover the situations other than that figure in s 376 of the IPC that negative
consent of the prosecutrix. It seems to be a sort of residuary clause.
11)  Rape by a man on a woman under his control or dominance.-- This clause was also
inserted in the provision in 2013 to bring in its ambit the sexual intercourse with a woman
whose consent is obtained or given because of dominance of the accused over the prosecutrix.
12)  Rape on a woman suffering from mental or physical disability.
13)  Rape with causing grievous bodily harm, maiming, disfiguring, or endangering life of
the woman.
14)  Repeated rape by a man on the same woman.
In all the above-mentioned instances, a minimum sentence of rigorous imprisonment for ten years, with fine,
is provided. The term of ten years' imprisonment may extend to imprisonment for life, which means
imprisonment for the remainder of the perpetrator's natural life. 74
A comparative reading of both the sub-sections of s 376 of the IPC reveals three features of the revised s
376(2). First, it not only widens the ambit of 'rape' by adding thereto a few new forms of non-consensual
sexual intercourse but also provides for stern punishment for the perpetrator. Secondly, it takes away the
hitherto prevalent judicial discretion of awarding punishment lesser than the minimum punishment (i.e.
rigorous imprisonment for a term of ten years) for 'adequate and special reasons'. Thirdly, it, like the pre-
amended s 376(2), provides for imprisonment for life but it specifically makes mention that life imprisonment
means 'imprisonment for the remainder of his natural life'.
It seems that the courts in India are also more inclined to record conviction and to impose stern punishment
for committing rape.75The Supreme Court, prior to the 2013 Amendment Act, stressed:

An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case
for recording a finding as to the accused being guilty, the court should not lean in favour of acquittal by giving weight to
irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit
thereof where none reasonably exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt
and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on
the prowl for easy prey, more so when the victims of crime are helpless females or minor children.76

The apex court also advised the courts subordinate to it 'to display a greater sense of responsibility and to be
more sensitive while dealing with charges of sexual assault on women, particularly of tender age and
children'. It stressed that 'cases of sexual crime against women need to be dealt with by courts sternly and
severely'77 and opined that 'a socially sensitised judge is a better statutory armour in cases of crime against
women than long clauses of penal provisions, containing complex exceptions and provisos'. 78
Recently, the Supreme Court took another opportunity to inform the subordinate courts and High Courts that
despite stringent provisions for rape, many courts in the past have taken a softer view while awarding
punishment to perpetrators of such a heinous crime. The judicial trend, the court stressed, exhibits stark
insensitivity to the need for proportionate punishment for perpetrators of rape. 79 It, however, warned them to
be cautious as false charges of rape, motivated by personal or economic gains, are not uncommon. Persons
accused of sexual assault also need protection from the false or engineered accusation of rape loaded with
ill-motives or designs.80 False allegation of rape, like a rape victim, causes a great distress, humiliation and
damage to the accused.81 Rape, being a monstrous burial of dignity of a woman in the darkness and a crime
against the holy body of a woman and the soul of the society, warrants just punishment from the court and
the courts are bound to respond, within legal parameters, to the demand. It is a demand for justice and
award of punishment has to be in consonance with the legislative command and the discretion vested in the
court.82

GANG RAPE
 11

Section 376D. Gang rape.--Where a woman is raped by one or more persons constituting a group or act
ing in furtherance of a common intention, each of those persons shall be deemed to have committed the
offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than
twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's
natural life, and with fine:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the
victim:
Provided further that any fine imposed under this section shall be paid to the victim.
Section 376D, which derives its source from the pre-2013 amended section 376(2)(g) read with explanation 1
thereto, articulates the offence of gang rape in a better way, provides very severe punishment to perpetrator
thereof, and mandates a court to order the payment of fine imposed to the victim of gang rape for her
medical treatment and rehabilitation.
Where a woman is raped by one or more in a group of persons, each of the persons must be deemed to
have committed gang rape, when it is committed, by one or more from the group, in furtherance of their
common intention. The offence of gang rape embodies the principle of joint liability. The essence of the joint
liability is the existence of common intention. Common intention pre-supposes prior concert or meeting of
minds of all the persons constituting the group.83 In Bhupinder Sharma v State of Himachal Pradesh ,84 the
Supreme Court held the appellant, one of the accomplices of gang rape, guilty of committing gang rape even
though he, unlike other members of the group, could not sexually assault the victim as she escaped from the
place of incident before he could perpetrate the act. However, the trial court convicted and ordered him,
without giving any adequate and special reasons, to undergo rigorous imprisonment for four years while it
sentenced the perpetrators of act ual rape to rigorous imprisonment for ten years. The high court, by issuing
suo moto notice of enhancement of punishment, enhanced the appellant's sentence from rigorous
imprisonment for four years to rigorous imprisonment for ten years [ie the minimum sentence provided under
old s 376(2)]. The high court placed its reliance on expln 1 of s 376(2) [now s 376D] as well as s 114A of the
Evidence Act, 1872 that provides for presumption as to absence of consent in certain prosecution for rape.
The Supreme Court, in the special leave to appeal against the high court's judgment, upholding the high
court's order and placing its reliance on expln 1, 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 convict them under s
376. The apex court 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 s
376(2).85 Involvement of a group of persons is not necessary. 86
In Pradeep Kumar v Union Administrator, Chandigarh ,87 the Supreme Court has stressed that the
prosecution is required to prove to bring the offence of rape as gang rape that: (i) there was a group of
persons that decided to act in concert with the common intention to commit rape on the victim, (ii) more than
one person from the group, in furtherance of the common intention, has acted or participated in concert in the
commission of rape with pre-arranged plan, and (iii) one or more persons (not necessarily everyone) of the
group, in pursuance of the common intention, has act ually committed the offence of rape. Every one of the
group is deemed to have committed the rape. The essence of the liability is the existence of common
intention. Mere presence of a person when rape was committed by another is insufficient to show that he had
prior concert or meeting of mind with others and thereby to hold him guilty of gang rape. 88
However, a woman, who happened to be a member of the group and has facilitated the commission of rape,
cannot be held guilty of committing gang rape as she cannot commit the offence of rape. The expression 'in
furtherance of their common intention' in the section 376 relates to intention to commit rape. A woman cannot
be said to have an intention to commit rape.89

RAPE CAUSING DEATH OR RESULTING IN PERSISTENT VEGETATIVE STATE OF

THE VICTIM
Section 376A. Punishment for causing death or resulting in persistent vegetative state of victim.--
Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of section 376 and in the
 12

course of such commission inflicts an injury which causes the death of the woman or causes the woman to
be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be
less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the
remainder of that person's natural life, or with death.
Sections 376A is inserted in the IPC by the Criminal Law (Amendment) Act 2013. It criminalises the act of
inflicting injury on a woman while raping her that results in her death or causes persistent vegetative state
and provides for rigorous imprisonment for a term not less than twenty years, which may extend to
imprisonment for remainder of his natural life. In this sense, s 376A constitutes one of the aggravated forms
of rape.

REPEAT OFFENDER
Section 376E. Punishment for repeat offenders.--Whoever has been previously convicted of an offence
punishable under Section 376 or Section 376A or Section 376D and is subsequently convicted of an offence
punishable under any of the said sections shall be punished with imprisonment for life which shall mean
imprisonment for the remainder of that person's natural life, or with death.
Sections 376E , which is inserted in the IPC by the Criminal Law (Amendment) Act 2013, provides severe
punishment for repeat offenders. A person, who is previously convicted of committing rape or inflicting, in the
course of committing rape, injury that caused her death or resulted in persistent vegetative state of his victim
or was guilty of gang rape, if subsequently found guilty of committing the same offence, will be punished with
imprisonment for life, which means imprisonment for the remainder of his natural life, or with death. 90

PUNISHMENT FOR CONSENSUAL SEXUAL INTERCOURSE NOT AMOUNTING TO

RAPE
Section 376C. Sexual intercourse by a person in authority.--Whoever, being--

3a)  in a position of authority or in a fiduciary relationship; or

3b)  a public servant; or
3c)  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 a women's or children's
institution; or
3d)  on the management of a hospital or being on the staff of a hospital,
abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under
his charge or present in the premises to have sexual intercourse with him, such sexual intercourse not
amounting to the offence of rape, shall be punished with rigorous imprisonment of either description for a
term which shall not be less than five years, but which may extend to ten years, and shall also be liable to
fine.
Explanation 1.--In this section, 'sexual intercourse' shall mean any of the act s mentioned in clauses (a) to (d)
of section 375.
Explanation 2.--For the purposes of this section, Explanation 1 to section 375 shall also be applicable.
Explanation 3.--"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 such person can exercise any authority or control over its inmates.
Explanation 4.--The expressions "hospital" and "women's or children's institution" shall
respectively have the same meaning as in Explanation to sub-section (2) of section 376.
Section 376C is another new provision which is inserted in the IPC by the Criminal Law (Amendment) Act
2013. However, a careful reading of the provision reveals that it, in fact, covers the thematic pulse and
phraseology of s 376B, s 376C, and s 376D of the pre-2013 IPC, which were deleted by the Amendment Act
of 2013. These provisions, like the existing s 376C, dealt respectively with sexual intercourse by a public
servant, superintendent of jail, remand home or any other place of custody, and a member of the
 13

management or staff of a hospital with a woman in his custody by using his official position to induce for the
sexual act. Nevertheless, it distinguishes itself from the latter three sections, from which it drew its source, in
two respects. It adds to the list of persons covered thereunder, a person 'in a position of authority or in a
fiduciary relationship' and provides for enhanced punishment (rigorous imprisonment of either description for
a term between five and ten years in lieu of a term up to five years).
Further, a distinction between the offence of rape contained in s 375, IPC, which is punishable under s
376(2), IPC, and the offence of sexual intercourse by a person in authority with a woman in the situations
specified in ss 376B, 376C and 376D of the IPC (now re-worded and re-numbered s 376C) and punishable
thereunder, is of worth noting. In the former, the sexual intercourse is with no consent at all of the prosecutrix,
while in the latter sexual intercourse is with her consent which has been obtained by the doer by taking
undue advantage of his position as a public servant or superintendent of jail or remand home or a member of
the management or staff of a hospital. The latter, unlike the former, in stricto sensu, does not amount to
rape.91
For seeking conviction under s 376C, it must be proved that: (i) the accused is a person belonging to any of
the four categories mentioned in clauses (a) to (d) thereof, namely, a person: (a) in a position of authority or
in a fiduciary relationship, (b) a public servant,92(c) superintendent of jail or remand home or a women's or
children's institution, (d) a member of the management or staff of a hospital; (ii) he must take advantage of
his official position; (iii) he must induce or seduce a woman; (iv) such woman must be in his custody 93 or
under his charge or present in the premises; and (v) he must have sexual intercourse with her which does
not amount to rape. Such a sexual intercourse must take place within the precincts of the place where the
woman was in his custody.94

EVIDENCE OF PROSECUTRIX
In every rape case, the evidence of the prosecutrix is a very crucial piece of testimony to prove the case
against the accused. Every rape victim in our country is viewed with a lot of suspicion and is also humiliated.
More than the culprit, it is the rape victim who faces social stigma. Unfortunately, when a man is prosecuted
for committing or attempting rape, the defence endeavors to show that the prosecutrix was of generally
immoral character. Very often, it is used as a pretext to harass or humiliate the prosecutrix in the course of
cross-examination.95
The testimony of victim in cases of sexual offences is vital and unless there are compelling reasons, which
necessitate looking for corroboration for her statement, the court should find no difficulty to act on the
testimony of a victim of sexual assault alone. The evidence of a girl or a woman who complains of rape or
sexual molestation, should not be viewed with doubt, disbelief or suspicion. Her evidence is entitled to great
weight even without corroboration. A victim of sexual assault is not an accomplice of the crime 1 and is a
victim of another man's lust and it is improper and undesirable to test her evidence with a certain amount of
suspicion, treating her as if she were an accomplice.2 Her statement has to be evaluated on par with that of
an injured witness in cases of physical violence.3 In fact, testimony of a rape victim stands on a higher
pedestal than that of an injured witness for the reason that an injured witness suffers only physical injuries,
whereas the prosecutrix suffers psychologically and emotionally too. 4 Sexual assault causes greatest distress
and humiliation to her. Ordinarily, no injured witness tells a lie or implicates a person falsely. 5Refusal to act on
the testimony of the victim of sexual assault in the absence of corroboration as a rule is adding to the insult to
injury.6 Viewing to the evidence of a victim of rape with the aid of spectacles fitted with lenses tainted with
doubt, disbelief or suspicion justifies the charge of male chauvinism in a male dominated society. In fact, the
very nature of the offence of sexual assault negatives the possibility of finding direct witnesses and courts
should not insist for it unless probability factor is found to be out of tune. 7
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 repeatedly asserted that
a court can rely upon the evidence of the prosecutrix, even without seeking corroboration, if it seems natural 8
and inspires confidence.9
A court should not seek for corroboration of the prosecutrix testimony unless there are some compelling
reasons.10 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 short of corroboration
 14

required in the case of accomplice.11 If the totality of the circumstances appearing on record discloses that
the prosecutrix does not have a strong motive to falsely implicate the person charged, the court should
ordinarily have no hesitation in accepting her testimony. 12 If facts and circumstances appearing on record
indicate that there is a strong motive of the prosecutrix to falsely implicate the accused, the court should seek
for some collaborative evidence.13 In such a situation, it is a duty of the court to evaluate such evidence with
care and circumspection, and rely thereon only when the court is satisfied that her testimony is creditworthy. 14
There is no rule of law that testimony of prosecutrix cannot be act ed without corroboration in material
particulars.15 In State v Dayal Sahu ,16 the Supreme Court, reversing the acquittal order of the high court,
recorded conviction of the accused solely on the confidence inspiring testimony of the prosecutrix. 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. 17

However, a court is not required to accept testimony of prosecutrix if her story is improbable and belies
logic.18 Such an acceptance goes against the hitherto recognized principles governing appreciation of
evidence in a criminal matter.19 Nevertheless, a court must not assume that her testimony is always correct
and free from embellishment or exaggeration. It cannot be taken as a gospel truth in all circumstances and
with no exceptions.20 A court needs to remind itself that persons accused of sexual assault also need its
protection from false accusation or implication. False charges or rape, loaded with ill-motives, are not
uncommon. Her statements must be examined in the light of the principles governing testimony of injured
witness and of the need to protect accused from false implication. Circumstances and facts of the case at
hand, which need to be scanned carefully, would exhibit as to whether the prosecutrix was raped or not. 21
The court has to appreciate evidence in totality of the circumstances. If there appears some contradictions or
variations between different exhibits, medical and ocular evidence, the court has to remind itself that minor
inconsistency or variation in the medical and ocular evidence, as a rule, does not tilt the balance of justice in
favour of the accused. Minor variations between medical evidence and ocular evidence do not take away the
primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities
whatsoever of injuries taking place in the manner stated by the eye-witnesses, the testimony of the
eyewitnesses cannot be thrown out. The court, normally, has to look at expert evidence with a greater sense
of acceptability, unless it is perfunctory, unsustainable and is the deliberate attempt to misdirect the
prosecution. Only where contradictions and variations are of serious nature, which apparently or impliedly
are destructive of the substantive case sought to be established by the prosecutrix, prove advantageous to
the accused.22
Propriety of the hitherto employed 'two-finger test' (i.e. admission of two fingers in the vagina freely or with
difficulty) for medically ascertaining as to whether rape victim was habituated to sexual intercourse and
hymen was ruptured or intact has been questioned by the Supreme Court. It has asserted that the test and
its interpretation violates right to privacy, physical and mental integrity and dignity of the prosecutrix
guaranteed under art 21 of the Constitution. The test, even if the report is affirmative, according to the court,
cannot ipso facto give rise to the presumption of her consent for the sexual act. 23

DISCLOSURE OF IDENTITY OF RAPE VICTIMS

Section 228A. Disclosure of identity of the victim of certain offences, etc.--

3)  Whoever prints or publishes the name or any matter which may make known the
identity of any person against whom an offence under Section 376,Section 376A, Section
376B, Section 376C, Section 376D or Section 376E is alleged or found to have been committed
(hereinafter in this section referred to as the victim) shall be punished with imprisonment of
either description for a term which may extend to two years and shall also be liable to fine.
3)  Nothing in sub-section (1) extends to any printing or publication of the name or any
matter which may make known the identity of the victim if such printing or publication is--
 15

2. by or under the order in writing of the officer-in-charge of the police station or the
police officer making the investigation into such offence act ing in good faith for the
purposes of such investigation; or
2. by, or with the authorisation in writing of, the victim; or
2. where the victim is dead or minor or of unsound mind, by, or with the authorisation in
writing of, the next-of-kin of the victim:
Provided that no such authorisation shall be given by the next-of-kin to anybody other than
the chairman or the secretary, by whatever name called, of any recognised welfare institution or
organisation.
Explanation.--For the purpose of this sub-section, 'recognised welfare institution or
organisation' means a social welfare institution or organisation recognised in this behalf by the
Central or State Government.
2)  Whoever prints or publishes any matter in relation to any proceeding before a Court
with respect to an offence referred to in sub-section (1) without the previous permission of such
court shall be punished with imprisonment of either description for a term which may extend to
two years and shall also be liable to fine.
Explanation.--The printing or publication of the judgment of any High Court or the Supreme Court does not
amount to an offence within the meaning of this section.
This section has been inserted by the Criminal Law (Amendment) Act 1983, with a view to protect identity of
rape victims from public glare. In our country, the stigma attached to a rape victim is much more than the
stigma attached to a person accused of rape. There have been instances, where sensitive cases have been
sensationalised to the detriment of the rape victims. In order to protect their interest, this section has been
enacted which makes the publishing or revealing the identity of any rape victim an offence. However,
proceedings of police officials in charge of investigation and a publishing or printing of judgments of high
courts or the Supreme Court is excluded from the provisions of this section. 24 The section also protects
publication made with the consent of the victim in writing or the guardian of the victim, where the victim is a
minor or a person of unsound mind. But, even such authorisation shall be given only to a recognised social
welfare institution.
The Supreme Court, keeping in view the legislative intent of s 228A and the social victimisation and
ostracisation of the victim of sexual assault, on occasions more than one, 25 has advised the high courts and
lower courts not to indicate the name of the victim of sexual assault in their judgments even though the
statutory restriction is not applicable to printing or publication of their judgments.

ASSISTANCE TO VICTIMS OF RAPE

In Delhi Domestic Working Women's Forum v Union of India ,26 the Supreme Court, highlighting ordeals of
victims of rape and defects in the present criminal law system vis--vis victims of rape, outlined a set of broad
parameters to assist them. They are:

4)  The complainants of sexual assault cases should be provided with legal
representation. It is important to have someone who is well-acquainted with the criminal justice
system. The role of the victim's advocate would not only be to explain to the victim the nature of
the proceedings, to prepare her for the case and to assist her in the police station and in the
court, but to provide her with guidance as to how she might obtain help of a different nature
from other agencies, for example, counseling through medical assistance. It is important to
secure continuity of assistance by ensuring that the same person who looked after the
complainant's interests in the police station, represents her till the end of the case;
4)  Legal assistance will have to be provided at the police station, since the victim of
sexual assault might very well be in a distressed state upon arrival at the police station, the
guidance and support of a lawyer at this stage and whilst she is being questioned, would be of
great assistance to her;
 16

3)  The police should be under a duty to inform the victim of her right to representation,
before any questions were asked of her, and that the police report should state that the victim
was so informed;
2)  A list of advocates willing to act in these cases should be kept at the police station
for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable;
2)  The advocate shall be appointed by the court, upon application by the police at the
earliest convenient movement, but in order to ensure that victims were questioned without
undue delay, advocates would be authorised to act at the police station before leave of the
court was sought or obtained;
2)  In all rape trials, anonymity of the victims must be maintained, as far as necessary;
2)  It is necessary, having regard to the directive principles contained under art 38(1) of
the Constitution of India , to set up criminal injuries compensation board. Rape victims
frequently incur substantial financial loss. Some, for example, are too traumatised to continue in
employment;
2)  Compensation for victims shall be awarded by the court on conviction of the offender
and by the criminal injuries compensation board, whether or not a conviction has taken place.
The board will take into account the pain, suffering and shock, as well as loss of earnings due
to pregnancy and the expenses of childbirth, if this occurred as a result of the rape. 27
The Supreme Court has also resorted to public law remedies to compensate victims of rape. 28 It has also
invoked its extra-ordinary jurisdiction under art 136 of the Constitution for deciding adequacy or otherwise of
ex gratia compensation (of two lac Rupees) paid by State to two victims of gang rape (by sixteen persons)
and directing the State to pay adequate compensation (of eight lac Rupees) to them, though admitting that
that no amount of compensation, as a matter of fact, can compensate the traumatic stress which a gang rape
victim undergoes every moment of her life, and restore her dignity. 29The Code of Criminal Procedure
(Amendment) Act, 2008 (Act 5 of 2009) has added s 357A, dealing with 'victim compensation scheme', in the
CrPC. All State Governments, in co-ordination with the Central Government, are required to prepare a
scheme for victim compensation. On recommendation by the court for compensation, the District Legal
Service Authority or the State Legal Service Authority is mandated to decide the quantum of compensation to
be awarded under the Scheme. A court is allowed to pass, at the conclusion of the trial, a compensation
order in favor of the crime victim when it is satisfied that the compensation awarded under s 357 of the CrPC
is not adequate for rehabilitation of the victim or where the case ends in acquittal or discharge and the victim
has to be rehabilitated. There is also a provision for relief after inquiry by the State or District Legal Service
Authority in those cases where no trial takes place because the offender cannot be traced or identified, but
the victim is identified.
It is worth to recall that fine imposed on perpetrators of gang rape has not only to be just and reasonable to
meet the medical expenses and rehabilitation of the victim, but it also is required to be paid to the
victim.30And the compensation payable by the State Government (under s 357A, CrPC) is in addition to the
payment of fine payable to the victim of gang rape (under s 376D, IPC). 31
The State or District Legal Services Authority, as the case may be, with a view to alleviating the suffering of
the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost to
the victim.32 All hospitals, public or private, whether run by the Central Government, the State Government,
local bodies or any other person, are statutorily obliged to provide the first-aid or medical treatment, free of
cost, to the victims of rape.33 And when a person in charge of a hospital, public or private, whether run by the
Central Government, the State Government, local bodies or any other person, in contravention of his
statutory obligation, fails to provide the first-aid facility or medical benefits, will be punished with
imprisonment for a term up to one year or with fine or with both. 34

PART B - UNNATURAL OFFENCES

Section 377. Unnatural offences.--Whoever voluntarily has carnal intercourse against the order of nature
with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.
 17

Explanation.--Penetration is sufficient to constitute the carnal intercourse necessary to the offence described
in this section.
Section 377 punishes unnatural carnal intercourse and corresponds to the offences of sodomy and bestiality
under the English law. Under this section, consent is wholly irrelevant. The party consenting would be equally
liable as an abettor. By virtue of explanation appended to it, penetration, as in the case of rape, howsoever
minimal it be, is required to constitute the 'carnal intercourse'. Voluntary 'carnal intercourse against the order
of nature' with a man, woman or animal evinced by 'penetration' is essential to attract s 377.
However, the key terms, 'carnal intercourse' and 'penetration', are not defined in the IPC.
In 1969, the Kerala High Court was invited to interpret 'carnal intercourse' and 'penetration'. It was called
upon to decide as to whether an act of inserting a male organ between the thighs kept together and tight
amounts to a 'carnal intercourse against the order of nature' and thereby the doer comes within the clutches
of 'unnatural offences'. The high court, offering a very wide interpretation to 'intercourse', held that an act of
inserting the male organ between the thighs of another amounts to an unnatural offence contrary to s 377.
Delving into the terms 'intercourse' and 'penetration' for the purpose of s 377 and justifying its stand, the
court observed:

...[T]he word intercourse... is the temporary visitation of the organism by a member of the other organisation... .[T]here
is no intercourse unless the visiting member if enveloped at least partially by the visited organism, for intercourse
connotes reciprocity. Therefore, to decide whether there is intercourse or not, what is to be considered is whether the
visiting organ is enveloped at least partially by the visited organism. In intercourse between the thighs, the visiting male
organ is enveloped at least partially by the organism visited, the thighs, the thighs are kept together and tight. 35

Subsequently, the Madras High Court, inter alia, was also urged to adjudicate as to whether 'manipulation
and movement of the penis' whilst being held by a minor boy 'in such a way as to create an orifice like thing
for making the manipulated movement of insertion and withdrawal up to the point of ejaculation of semen'
comes within the sweep of 'unnatural' carnal intercourse. The high court, relying heavily upon the
Kundumkara Govindan dictum of the Kerala High Court, observed:

...[T]he male organ of the petitioner is said to be held tight by the hands of the victims, creating an orifice like thing for
manipulation and movement of the penis by way of insertion and withdrawal. In the process of such manipulation, the
visiting male organ is enveloped at least partially by the organism visited, namely, the hands which held tight the penis.
The sexual appetite was thus quenched by the ejaculation of semen into the hands of the victims.... [T]he overt act s (of
the petitioner)... have to be construed as falling within the ambit and sweep of Section 377 , IPC ....36

A reading of s 377 and judicial pronouncements thereon, though scanty, reveals that penile-anal, penile-oral
or penile-animal penetration, howsoever slight it be, constitutes the 'carnal intercourse' against the order of
nature under s 377.
Penile-anal penetration (sodomy), as held by the courts in India, undeniably comes within the ambit of s 377,
as it is carnal intercourse against the order of nature. 37
A reading of the Delhi High Court's opinion in the Smt Sudesh Jhaku case38 also reveals that penile-mouth
penetration amounts to an act contrary to s 377. In Calvin Francis v State of Orissa ,39 the Orissa High Court
also held the person guilty of carnal intercourse against the order of nature when he put his sex organ into
victim's mouth.
Bestiality, penal-animal penetration, also attracts the provisions of s 377. 40
It is significant to note that it is, like in rape cases, not required for a court to seek, as a rule, corroboration for
testimony of a victim of unnatural offences, if it is reliable and cogent. The rule regarding non-requirement of
corroboration is equally applicable to a case relating to s 377 of the IPC. 41

CONSTITUTIONAL VALIDITY OF S 377

In Naz Foundation v Government of NCT of Delhi ,42 the constitutional validity of s 377 was challenged in the
Delhi High Court by Naz Foundation, a NGO. Naz contended that s 377, on account of covering consensual
 18

sexual intercourse between two adults in private, is violative of the fundamental rights guaranteed in arts 14,
15, 19 and 21 of the Constitution. It stressed that s 377, in essence, goes against the spirit of the right to
personal liberty [encompassing the right to privacy, the right to dignity, individual autonomy] and to equality
before law [prohibiting any classification based on irrational rationale] guaranteed under art 21 and art 14 of
the Constitution, respectively. Section 377, it argued, is violative of art 15 of the Constitution as it criminalizes
homosexual act ivity on the basis of mere sexual orientation. Section 377, by prohibiting homosexuality, Naz
asserted, infringes the basic freedoms guaranteed under art 19(1)(a)(b)(c) as individual's ability to make
personal statement about his sexual preferences, right to associate or assemble and the right to move freely
(with gays) so as to engage in homosexual conduct is curtailed or restricted. Naz, therefore, urged the High
Court to, through judicial interpretation of s 377, decriminalize 'unnatural' sexual intercourse between two
consenting adults in private, and to limit it only to non-consensual penile non-vaginal sexual intercourse and
penile non-vaginal sex involving minors.
The Union of India, represented by its Ministry of Home Affairs and Ministry of Health & Family Welfare,
resisted the claim of the petitioner and pressed for its retention. However, the two Ministries of the Centre
strangely took contradictory stands. The Ministry of Home Affairs sought to justify the retention of s 377,
while the Ministry of Health & Family Welfare, supporting claim of the Petitioner, stressed that the presence
of s 377 in the statute book has hampered the HIV/AIDS prevention efforts, and that its deletion would help
NGOs working among HIV/AIDS patients to fight against the killer-disease among homosexuals. The Home
Affairs Ministry justified its existence in the Code on the ground of public health, public morality, public
disapproval, and social disgust of the act. Its decriminalization, the Ministry pressed, would be against the
prevailing sexual mores in India. It contended that no right, including the fundamental rights, can be absolute.
The Constitution permits reasonable restrictions on the fundamental rights on the ground of decency,
morality, and public health. The restriction on homosexual act through s 377, therefore, is justified.
After undertaking extensive examination of arguments and counter-arguments of the parties, in the light of
appropriate constitutional provisions & aspirations; judicial pronouncements and juristic opinions from home
and abroad; moral justifications for and against (de)criminalization of consensual homosexuality, 43 and
reforms carried out in the overseas law relating to sexual act between two willing adults in private, the Delhi
High Court accepted all the contentions of the petitioner. It declared s 377 partly ultra vires to the
Constitution. It ruled that s 377, insofar it criminalizes consensual sexual acts of adults, (i.e. persons of or
above 18 years) in private, is, being violative of arts 21, 14 and 15 of the Constitution, unconstitutional.
Nevertheless, it, as stressed by the petitioner NGO, ruled that the provisions of s 377 will still continue to
govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.
However, some public-spirited individuals and organizations, doubting constitutional propriety of the Naz
Foundation dictum, have approached the Supreme Court urging it to restore s 377 as it stands originally.
Interestingly, during the initial hearing of the matter in the Apex Court, conflicting stand of the Attorney-
General's Office and the Union Government resurfaced. The former argued against the Naz Foundation
dictum, while the Union Government, through a Cabinet decision, decided not to contest the matter.
In Suresh Kumar Koushal v NAZ Foundation ,44 the Supreme Court, after hearing equally forceful arguments
for and against the retention of s 377 in the IPC, has overruled the Naz Foundation Dictum of the Delhi High
Court and thereby upheld the constitutional validity of s 377 of the IPC. It ruled that s 377, IPC, does not
offend either of the provisions of arts 14, 15 and 21 of the Constitution. It does not suffer from the vice of
unconstitutionality.
There are two classes of people, those who indulge in carnal intercourse in the ordinary course and those
who indulge in carnal intercourse against the order of nature, and, the court argues, the people falling in the
latter category cannot claim that s 377 suffers from the vice of arbitrariness and irrational classification.
Section 377 does not criminalize a particular people or identity or sexual orientation. It merely identifies and
prohibits carnal intercourse against the order of nature and provides punishment therefor. It merely regulates
sexual conduct of persons regardless of gender identity and sexual orientation. The Delhi High Court,
according to the apex court, while reading s 377, also overlooked the fact that a miniscule fraction of the
country's population constitute lesbians, gays, bisexuals or transgenders and a very negligible number of
persons have been prosecuted for committing the offence contrary to s 377. Such a fact cannot be made
sound basis for declaring s 377 unconstitutional. The High Court therefore was not right in holding s 377
violative of the provisions of arts 14, 15 and 21 of the Constitution. 45 Constitutionality of the right to liberty,
 19

privacy and autonomy, that can obviously be read under art 21 of the Constitution, needs to be judged in the
backdrop of not only of the legislated right itself but also of the provision that purports to limit or restrict the
right. Any purported restriction must be just, fair and reasonable. Mere possibility of abuse of law by authority
does not per se invalidate it or furnishes a ground for holding it unconstitutional. The mere fact that the police
have used s 377 to perpetrate harassment, blackmail or torture on sexual minorities, particularly LGBT
community, cannot be used to assail constitutionality of the said provision.
The Supreme Court referred to, and relied upon, a plethora of its earlier judicial pronouncements to rule that
s 377 is intra vires. Expressing its displeasure over reliance by the Delhi High Court on foreign judicial
opinions, the Supreme Court observed that: 'in its anxiety to protect the so-called rights of LGBT persons and
to declare that section 377 Indian Penal Code violates the right to privacy, autonomy and dignity, the High
Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed
considerable light on various aspects of this right and are informative in relation to the plight of sexual
minorities, we feel that they cannot be applied blindfolded for deciding constitutionality of the law enacted by
the Indian legislature.'46 Recalling the 'presumption of constitutionality' in favour of legislation, the apex court
reminded higher courts to be reluctant to declare a law invalid or ultra vires on account of unconstitutionality
and advised then to resort to 'the principle of reading down or reading into' the provision to make it effective,
workable and ensure the attainment of the object of the Act . Declaring the law unconstitutional is one of the
last resorts taken by courts.47

PART C - PROPOSALS FOR REFORM

RAPE
The Fifth Law Commission pondered upon the definition of 'rape' vis--vis 'consent' of the woman in the light
of s 90 of the IPC and sexual intercourse by a man with his wife under the stipulated age (marital rape) and
separated wife. It suggested that the offence of rape should be split into three categories: (i) rape proper
(rape on a woman other than wife); (ii) rape on a child wife (wife below twelve) & a separated wife, and (iii)
statutory rape (consensual sexual intercourse with a girl below the stipulated age). Its proposals for reform
are:

5)  Clause thirdly of s 375, which, according to it, is not in tune with s 90, IPC, should be
revised to bring within its ambit also the consent of the victim obtained by putting 'anyone else
present at the place' 'in fear of death or of hurt'.
5)  Sexual intercourse by a man with his wife against her will or without her consent (i.e.
marital rape) should not be called rape 'even in a technical sense' and it should be taken out of
the ambit of s 375 and should be made punishable under a separate provision.
4)  A new section penalizing sexual intercourse by a man with his 'child wife' and
'judicially separated wife' should be added to the Code.
3)  An illicit intercourse with a girl below sixteen years, even with her consent, should be
made punishable with simple or rigorous imprisonment for a term up to seven years.
However, in the eighties, when the increasing incidence of rape and frequent liberal and pro-accused judicial
interpretations of provisions of ss 375 and 376 evoked intensive lobbying by pro-women activists and
organizations for bringing drastic changes in the rape law, the Government of India, in 1980, requested the
Ninth Law Commission to suggest substantive as well as procedural reforms in the law relating to rape.
Prominent proposals of the Ninth Law Commission are:

6)  The proposed 'restructuring' of s 375 (by splitting it into three categories of rape)
suggested by the Fifth Law Commission should not be carried out as it would not only be 'out of
tune with the current thinking on the question of trial of offenders for rape' but also would
'produce uncertainty and distortion in s 375'. Therefore, it omitted the proposed provision
dealing with sexual intercourse with child wife and another one dealing with illicit intercourse
with a girl between 12 and 16 years from its recommended revised s 375.
 20

However, the Fifteenth Law Commission simply refused to recommend criminalization of marital rape on the
ground that 'it may amount to excessive interference with the marital relationship'. Similarly, appreciating the
force of the argument of Sakshi but refusing to 'ignore the fact that even in such a case (wife living separately
under a decree of separation or under any custom or usage) the bond of marriage remains unsevered', it
recommended that s 376A should be retained in the IPC. Nevertheless, it recommended an enhanced
punishment (an imprisonment for a term between two to seven years) for sexual assault by a husband on his
wife living separately.
In 2000, Sakshi,48 in its deliberations with the Fifteenth Law Commission, which was directed by the Supreme
Court to review rape laws, pleaded that forced sexual intercourse by a husband with his 'wife' and 'separated
wife' should be treated as offence. It also contended that s 376A, which provides a lesser punishment to a
husband who sexually assaults his wife living separately under a decree of separation or under any custom
or usage, is arbitrary and discriminatory as it, ultimately, discriminates between a husband, who sexually
assaults his wife living separately, and a man who sexually assaults a woman. The deletion of s 376A,
according to Sakshi, would make the husband, in such a case, punishable under s 376(1) which carries
higher punishment than s 376A.49
The Justice JS Verma Committee, taking note of the fact that the exemption of marital rape, which stems
from the idea that a wife is deemed to have consented at the time of the marriage to have sexual intercourse
with her husband at his whim and such a consent cannot be revoked by her, has been withdrawn in England
and other major jurisdictions, has recommended that (i) the marital rape exemption should be removed from
the IPC, and (ii) the law should specify that: (a) a marital or other relationship between the perpetrator and
victim is not a valid defence against the crimes of rape or sexual violation; (b) the relation between the
accused and the complainant is not relevant to the inquiry into whether the complainant consented to the
sexual act ivity, and (c) the fact that the accused and victim are married or in another intimate relationship
may not be regarded as a mitigating factor justifying lower sentence for rape. And marriage should not be
regarded as extinguishing the legal and sexual autonomy of wife. 50

UNNATURAL OFFENCES
The Fifth Law Commission, referring to the ongoing controversy about decriminalisation of homosexual acts
and recalling the public opinion about it in India, recommended decriminalisation of bestiality, as it is a
pathological manifestation of the perpetrator. It also felt that the punishment (life imprisonment or
imprisonment of either description for a term up to 10 years) provided for unnatural offences under the IPC
is 'very harsh' and 'unrealistic'. It suggested leniency in the punishment for buggery. However, it
recommended a comparatively longer term of imprisonment for such an unnatural sexual assault on a minor
girl or boy by an adult.
Clause 160 of the Indian Penal Code (Amendment) Bill 1978, drafted on the lines suggested by the Fifth
Law Commission, sought to substitute the existing s 377 of the IPC.
The Fourteenth Law Commission, endorsing the Fifth Law Commission's proposal for reform and the
consequential clause 160 of the 1978 Bill and recalling the growing incidence of unnatural sexual assaults on
minor children, however, recommended that a mandatory minimum sentence of imprisonment for a term not
less than two years (which may extend to seven years) should be provided for unnatural sexual assault on a
minor person. The Commission, however, proposed that a court, for adequate special reasons to be
recorded in the judgment, should be allowed to reduce the recommended mandatory minimum sentence. 51
However, the Fifteenth Law Commission, in its One Hundred and Seventy-second Report on the Review of
Rape Laws, in the light of its proposals for reform in s 375 and proposed s 376-E, dealing with unlawful
sexual conduct, recommended that s 377 should be deleted from the IPC and the persons having voluntary
carnal intercourse with any animal should be left to their just deserts. 52
In Suresh Kumar Koushal v NAZ Foundation ,53 the Supreme Court overruled the Naz Foundation Dictum of
the Delhi High Court and thereby upheld the constitutional validity of s 377 of the IPC.
 21

1 Bhupinder Sharma v State of Himachal Pradesh AIR 2003 SC 4684, (2003) 8 SCC 551; Aman Kumar v State of Haryana AIR
2004 SC 1497 [LNIND 2004 SC 184], (2004) 4 SCC 379; State of Madhya Pradesh v Santosh Kumar (2006) 6 SCC 1 [LNIND
2006 SC 512], 2006 Cr LJ 3636(SC) .

2 Criminal Law (Amendment) Act 1983 (Act No 43 of 1983). It came into effect on 25 December 1983.

3 Criminal Law (Amendment) Act 2013 (Act No 13 of 2013). It came into operation from 3 February 2013.

4 Tukaram v State of Maharashtra AIR 1979 SC 185 [LNIND 1978 SC 254].

5 Nirbhaya gang rape case that occurred on December 16, 2012.

6 The 1983 Amending Act widened the ambit of 'rape' and provided stiffer punishments therefor. It stipulated a mandatory
minimum sentence of seven years imprisonment, which may be extended to a term of ten years or for life. It also made gang
rape, custodial rape and rape on a pregnant woman, offences, and subjected them to rigorous imprisonment for a term not less
than ten years, which may be extended to life imprisonment. It mandated a court desiring to impose punishment lesser than the
mandatory minimum one to give 'adequate and special reasons' therefor. For consequences of the amendment see, Mohan
Anna Chavan v State of Maharashtra (2008) 7 SCC 561 [LNIND 2008 SC 1265], JT 2008 (7) SC 51 [LNIND 2008 SC 1265].

7 AIR 1979 SC 185 [LNIND 1978 SC 254].

8 See Gazette of India, Extraordinary, Part II, s 3, sub-s (ii), dated 24 December 2012.

9 Government of India, Report of the Committee on Amendments to Criminal Law (Government of India, 2013),

10 Ibid, chapter 3: Rape and Sexual Assault.

11 Ibid, chapter 3: Rape and Sexual Assault.

12 Ibid, see chapter 4: Sexual Harassment at Workplace; chapter 5: Other Offences against Women; chapter 6: Trafficking of
Women and Children; chapter 7: Child Sexual Abuse; chapter 9: Sentencing and Punishment.

13 It came into force on 3 February 2013.

14 The expression 'sexual intercourse' used in the two penal clauses, namely s 376B and 376C, is given meaning in terms of
the act s mentioned in clauses (a) to (d) of s 375 of the IPC. See explanation to s 376B and explanation 1 to s 376C. Same
meaning can also be attributed to 'sexual intercourse' appearing in s 375 exception 2 by reading in the light of s 376B.

15 Madan Gopal Kakkad v Naval Dubey (1992) 3 SCC 204 [LNIND 1992 SC 369]; Veer Bahadur v State (1995) Cr LJ
3169(Del) ; Ramkripal v State of Madhya Pradesh (2007) 11 SCC 265 [LNIND 2007 SC 353], (2007) Cr LJ 2302(SC) ; Satyapal
v State of Haryana (2009) 6 SCC 635 [LNIND 2009 SC 777], AIR 2009 SC 2190 [LNIND 2009 SC 777].

16 Wahid Khan v State of Madhya Pradesh (2010) 2 SCC 9 [LNIND 2009 SC 2041]; Parminder @ Ladka Pola v State of Delhi
(2014) 1 SCALE 368 [LNIND 2014 SC 32], (2014) 2 SCC 592 [LNIND 2014 SC 32].

17 Fateh Chand v State of Haryana, (2009) 15 SCC 543 [LNINDU 2009 SC 6], AIR 2009 SC 2729 [LNINDU 2009 SC 6].

18 Guddu v State of M.P., (2007) 14 SCC 454, 2006 (5) SCALE 238 [LNIND 2006 SC 317]; Rajendra Datta Zarekar v State of
Goa, AIR 2008 SC 572 [LNIND 2007 SC 1406], 2008 Cr LJ 710(SC) .

19 Aman Kumar v State of Haryana AIR 2004 SC 1497 [LNIND 2004 SC 184], (2004) 4 SCC 379; Tarkeshwar Sahu v State of
Bihar (now Jharkhand) (2006) 8 SCC 560 [LNIND 2006 SC 795], 2006 (10) SCALE 45 [LNIND 2006 SC 795].

20 Ramkripal Shyamlal Charmarkar v State of Madhya Pradesh (2007) 11 SCC 265 [LNIND 2007 SC 353], 2007 Cri LJ
2302(SC) .

21 (1994) 6 SCC 29.

22 Ibid, para 8. Reiterated with approval in: Koppula Venkat Rao v State of Andhra Pradesh AIR 2004 SC 1874 [LNIND 2004
SC 301], (2004) 3 SCC 602; Tarkeshwar Sahu v State of Bihar (now Jharkhand) (2006) 8 SCC 560 [LNIND 2006 SC 795], 2006
(10) SCALE 45 [LNIND 2006 SC 795].

23 Section 375 (b), IPC.

24 The Sudhesh Jhakiu fact-scenario, which the Delhi High Court declined to read as 'sexual intercourse' under the earlier
version of the Indian Penal Code 1860 s 375, if re-enacted, would certainly fit into the legislative framework of the revised s
375 (a) to (d), IPC. The fact scenario, as reported, was: a father of three daughters, an Under-Secretary in the Ministry of Home
Affairs, used to take his youngest (minor) daughter to his office and from there to a hotel in the evenings. There he, along with
his other colleagues, in company of the girl, used to consume alcohol and watch 'blue films'. While watching the films, he would
 22

make his daughter to consume alcohol, remove her clothes, and thrust his fingers in her vagina and anus. At home also he
used to, after stupefying his other two daughters and the wife and consuming alcohol with some 'white tablets', bring the
daughter to the drawing room. Then he would make himself naked and the daughter too and make her to suck his penis. The
CBI charged him under the Indian Penal Code 1860 ss 376 (punishment for rape), 377 (unnatural offences), 354 (outraging
modesty of a woman), & 366A (seducing a minor girl for illicit intercourse), read with the Indian Penal Code 1860 s 109
(abetting an offence). However, the Additional Sessions Judge charged him under the Indian Penal Code 1860 ss 354, 377
and 506 (punishment for criminal intimidation) and his colleagues under the Indian Penal Code 1860 ss 354 and 377. The
Delhi High Court refused to accept the plea of the mother of the child that her accused-husband be charged and prosecuted for
committing rape by giving wider interpretation to the expressions 'sexual intercourse' and 'penetration' appearing in the pre-
revised version of s 375 of the Indian Penal Code 1860. See, Sudhesh Jhaku v KCJ (1998) Cr LJ 2428(Del) .In Sakshi v
Union of India AIR 2004 SC 3566 [LNIND 2004 SC 657], (2004) 5 SCC 518, the Supreme Court also declined to read any non-
penile-vaginal penetration, such as finger-vaginal, finger-anal, and object-vaginal, in the expression 'sexual intercourse' to
avoid, in the interest of the society at large, chaos and confusion in the law dealing with rape.

25 Deelip Singh @ Dilip Kumar v State of Bihar AIR 2005 SC 203 [LNIND 2004 SC 1123], (2005) 1 SCC 88.

26 Pradeep Kumar Verma v State of Bihar AIR 2007 SC 3059 [LNIND 2007 SC 965]; Kaini Rajan v State of Kerala (2013) 9
SCC 113 [LNIND 2013 SC 830], (2013) Cr LJ 4888(SC) .

27 State of Uttar Pradesh v Chhoteylal, (2011) 2 SCC 550 [LNIND 2011 SC 73], AIR 2011 SC 697 [LNIND 2011 SC 73].

28 Rabinarayan Das v State of Orissa (1992) Cr LJ 269(Ori) .

29 Kaini Rajan v State of Kerala (2013) 9 SCC 113 [LNIND 2013 SC 830], (2013) Cr LJ 4888(SC) .

30 Section 375, explanation 2, IPC.

31 Uday v State of Karnataka (2003) 4 SCC 46 [LNIND 2003 SC 228]; Pradeep Kumar @ Pradeep Kumar Verma v State of
Bihar (2007) 7 SCC 413 [LNIND 2007 SC 965], AIR 2007 SC 3059 [LNIND 2007 SC 965].

32 Re AnthonyAIR 1960 Mad 308; Arjan Ram v State of Punjab AIR 1960 Punj 303; Gopi Shankar v State of Rajasthan AIR
1967 Raj 159; Bhimrao Harnooji Wanjari v State of Maharashtra (1975) Mah LJ 660; Vijayan Pillai v State of Kerala (1989) 2
Ker LJ 234; State of Himachal Pradesh v Mange Ram AIR 2000 SC 2798 [LNIND 2000 SC 1144], (2000) 7 SCC 224; Deelip
Singh @ Dilip Kumar v State of Bihar AIR 2005 SC 203 [LNIND 2004 SC 1123]; (2005) 1 SCC 88; State of Uttar Pradesh v
Chhoteylal(2011) 2 SCC 550 [LNIND 2011 SC 73], AIR 2011 SC 697 [LNIND 2011 SC 73]; Dilip v State of Madhya Pradesh
(2013) Cr LJ 2449(SC), (2013) 6 SCALE 264 [LNIND 2013 SC 468]; Rop Singh v State of Madhya Pradesh (2013) 7 SCALE
761 [LNIND 2013 SC 1283], (2013) 7 SCC 89 [LNIND 2013 SC 1283].

33 Jarnail Singh v State of Rajasthan (1972) Cr LJ 824(Raj) .

34 For further discussion see ch 12: Consent and Compulsion, above.

35 Ie under s 376(2)(a) to (n), IPC.The presumption is based on the reasoning that no self-respecting woman can make a false
statement about sexual assault on her. See Ranjit v State (1998) 8 SCC 635.The reasoning becomes more powerful when she
is sexually assaulted by a number of persons simultaneously. No woman can be a consenting party for such sexual intercourse.
See Md Iqbal v State of Jharkhand AIR 2013 SC 3077 [LNIND 2013 SC 679], (2013) 9 SCALE 686.In the light of this
presumption, the burden of proof that the prosecutrix consented for the sexual act lies on the accused. See State of Himachal
Pradesh v Mange Ram AIR 2000 SC 2798 [LNIND 2000 SC 1144], (2000) 7 SCC 224; Deelip Singh @ Dilip Kumar v State of
Bihar AIR 2005 SC 203 [LNIND 2004 SC 1123]; (2005) 1 SCC 88; Bipul Medhi v State of Assam (2008) Cr LJ 1099(Gau) ;
State of Rajasthan v Roshan Khan (2014) 2 SCC 476 [LNIND 2014 SC 28], (2014) Cr LJ 1092(SC) .This presumption, however,
in ultimate analysis, exhibits an interesting facet of rape vis--vis innocence of the accused and burden of proof. In case of 'rape'
falling under s 376(1), unlike that is covered under s 376(2)(a)-(n), the accused is considered innocent until it is otherwise
proved beyond reasonable doubt by the prosecution. The onus of proof lies on the prosecution to prove that the sexual act in
question was non-consensual. This onus never shifts on the accused. See Ganga Singh v State of Madhya Pradesh AIR 2013
SC 3008 [LNIND 2013 SC 610], (2013) 7 SCC 278, (2013) Cr LJ 3966(SC) .

36 'Sexual intercourse' means any of the acts mentioned in clauses (a) to (d) of s 375 of the IPC. See s 114A explanation, IEA.

37 Vijay @ Chinee v State of Madhya Pradesh (2010) 8 SCC 191 [LNIND 2010 SC 659], 2010 (7 ) SCALE 502 [LNIND 2010
SC 659]; Mohan Lal v State of Punjab AIR 2013 SC 2408 [LNIND 2013 SC 487], (2013) 6 SCALE 8, (2013) Cr LJ 3265(SC) .

38 AIR 1991 SC 207.

39 Ibid, para 8.

40 State of Uttar Pradesh v Pappu @ Yunus AIR 2005 SC 1248, 2005 Cri LJ 331(SC) ; Narender Kumar v State (NCT of Delhi)
AIR 2012 SC 2281 [LNIND 2012 SC 347], (2012) 7 SCC 171, (2012) Cr LJ 2033(SC) ; Lillu @ Rajesh v State of Haryana AIR
2013 SC 1784 [LNIND 2013 SC 435], (2013) 7 SCALE 17, (2013) Cr LJ 2446(SC) .
 23

41 State of Punjab v Gurmit Singh AIR 1996 SC 1393 [LNIND 1996 SC 2903], (1996) 2 SCC 384; State of Punjab v Ramdev
Singh AIR 2004 SC 1290 [LNIND 2003 SC 1106], (2004) 1 SCC 421; State of Uttar Pradesh v Munshi AIR 2009 SC 370
[LNIND 2008 SC 1717].

42 Gajanand v State of Gujarat (1987) Cr LJ 374(Guj) .

43 Krisharaj v State (1969) Mys LJ 304.

44 Jayanti Rani v State of West Bengal (1984) Cr LJ 1535(Cal) ; Maran Chandra Paul v State of Tripura (1997) Cr LJ
715(Gau) ; Sudhamay Naik @ Bachhu v State of West Bengal (1999) Cr LJ 4482(Cal) ; Abhoy Pradhan v State of West Bengal
(1999) Cr LJ 3534(Cal) ; But see, Saleha Khatoon v State of Bihar (1989) Cr LJ 202(Pat) ; Purshottam Mahadev v State of
Bombay AIR 1963 Bom 74.

45 Uday v State of Karnataka (2003) Cr LJ 1539(SC) ; folld in Md Mahasin SK v Sayeda Khatun Bibi er Anr (2005) Cr LJ
3162(Cal) .

46 Hari Majhi v State of West Bengal (1990) Cr LJ 650(Cal) ; MC Prasannam v State (1999) Cr LJ 998(Cal) ; Araj Sk v State of
West Bengal (2001) Cr LJ 416(Cal) .

47 Addepalli Settibabu v State of Andhra Pradesh (1994) Cr LJ 1420(AP) ; see also Kondapalli Laxman Rao v State of Andhra
Pradesh (1999) Cr LJ 1928(AP) .

48 Deelip Singh @ Dilip Kumar v State of Bihar (2005) 1 SCC 88 [LNIND 2004 SC 1123]; Pradeep Kumar @ Pradeep Kumar
Verma v State of Bihar (2007) 7 SCC 413 [LNIND 2007 SC 965]; Yedla Srinivas Rao v State of Andhra Pradesh (2006) 11 SCC
615 [LNIND 2006 SC 785], (2006) 9 SCALE 692 [LNIND 2006 SC 785]; Kaini Rajan v State of Kerala (2013) 9 SCC 113 [LNIND
2013 SC 830], (2013) Cr LJ 4888(SC) .

49 Prashant Bharti v State of NCT Delhi AIR 2013 SC 2752, (2013) 9 SCC 293, (2013) Cr LJ 3839(SC) .

50 Deepak Gulati v State of Haryana AIR 2013 SC 2071 [LNIND 2013 SC 533], (2013) 7 SCC 675; (2013) Cr LJ 2990(SC) .

51 State of Uttar Pradesh v Naushad AIR 2014 SC 384 [LNINDU 2013 SC 34], (2014) Cr LJ 1540(SC) . A woman's body is not
a man's plaything and he cannot take advantage of it in order to satisfy his lust and desires by fooling a woman into consenting
to sexual intercourse simply because he wants to indulge in it. The accused commits a vile act of rape and deserves to be
suitably punished for it.

52 Bhupinder Sing v Union Territory of Chandigarh (2008) 8 SCC 531 [LNIND 2008 SC 1375], (2008) Cr LJ 3546(SC) .

53 Sanatan Ghosh v State of West Bengal (1987) 1 Crimes 157(Cal) ; see also State of Karnataka v KP Thimmappa Gowda
(2004) Cr LJ 4785(Kant) .

54 AIR 2004 SC 978, (2003) 8 SCC 590.

55 Ibid, para 8. See also Shamsher Tappi v State of Uttar Pradesh (1995) Cr LJ 2328(All) .

56 Bhoari v State of Rajasthan (1952) Raj LW 255; Ashok Rai @ Amit v State (2010) Cr LJ 1105(Del) .

57 Bishnu Dayal v State of Bihar AIR 1981 SC 39 [LNIND 1980 SC 307]; Jinish Lal Sah v State of Bihar (2003) 1 SCC 605
[LNIND 2002 SC 1342].

58 Iqbal v State of Kerala (2007) 12 SCC 724 [LNIND 2007 SC 1264], AIR 2008 SC 288 [LNIND 2007 SC 1264]; State of
Punjab v Rakesh Kumar AIR 2009 SC 392, (2009) Cr LJ 396(SC) ; Dilip v State of Madhya Pradesh (2013) Cr LJ 2449(SC),
(2013) 6 SCALE 264 [LNIND 2013 SC 468].Where the evidence of a woman below the age of eighteen years who is alleged to
have been subjected to rape or any other sexual offence is to be recorded, the court may take appropriate measures to ensure
that such woman is not confronted by the accused while at the same time ensuring the right of cross-examination of the
accused. See proviso to s 273, CrPC. This proviso is added thereto by the Criminal Law (Amendment) Act 2013, s 20.

59 For further analysis see, KI Vibhute, 'Rape within Marriage' in India: Revisited', Indian Bar Review, 2000, vol 27, p 167. Also,
see the references cited therein.

60 Bhupinder Singh v Union Territory of Chandigarh (2008) 8 SCC 531 [LNIND 2008 SC 1375], (2008) Cr LJ 3546(SC) .

61 Section 376B, IPC.It says: 'Whoever has sexual intercourse with his own wife, who is living separately, whether under a
decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term
which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.''Explanation: In this
section, 'sexual intercourse shall mean any of the act s mentioned in clauses (a) to (d) of section 375.'

62 Punishment for consensual or non-consensual sexual intercourse by a man with own wife below the age of fifteen is
imprisonment for a term not less than seven years, which may extend to imprisonment for life, and fine. See s 376(1).
 24

63 See s 198B, Cr PC, 1973, inserted by the Criminal Law (Amendment) Act, 2013 (s 19).

64 For meaning of the term 'police officer' see s 376(2) explanation (c), IPC.

65 Custody must be lawful custody, conferred by a court based on statutory provision or otherwise: Omkar Prasad Verma v
State of Madhya Pradesh AIR 2007 SC 1381 [LNIND 2007 SC 289], (2007) 4 SCC 323, (2007) Cr LJ 1831(SC) .

66 'Public servant' is defined under s 21, IPC.

67 For meaning of 'armed forces' see s 376(2) explanation (a), IPC.

68 For 'women's or children's institution' see s 376(2) explanation (d), IPC.

69 'Hospital' is defined under s 376(2) explanation (b), IPC.

70 A woman raped by her own father or a close relative feels totally devastated. She carries an indelible social stigma on her
head and deathless shame as long as she lives. See, State of Himachal Pradesh v Asha Ram AIR 2006 SC 381 [LNIND 2005
SC 906], (2005) 13 SCC 166, (2005) Cr LJ 139(SC) . Rape by father on his daughter is most reprehensible and he deserves
severe punishment. See Siriya v State of Madhya Pradesh AIR 2008 SC 2314 [LNIND 2008 SC 1185], (2008) 8 SCC 32.Rape
by teacher on his student is equally reprehensible and disgusting. See State of Himachal Pradesh v Shree Kant Shekari AIR
2004 SC 4404 [LNIND 2004 SC 921], (2004) 8 SCC 153; Deelip Singh @ Dilip Kumar v State of Bihar AIR 2005 SC 2003,
(2005) 1 SCC 88; Mohan Lal v State of Punjab AIR 2013 SC 2408 [LNIND 2013 SC 487], (2013) 6 SCALE 8, (2013) Cr LJ
3265(SC) .

71 Mohd Haroon v Union of India 2014 (4) SCALE 86.

72 Om Prakash v State of Uttar Pradesh AIR 2006 SC 2214 [LNIND 2006 SC 382], (2006) 9 SCC 787, (2006) Cr LJ 2913(SC) .
Also see Sandesh @ Sainath Kailash Abhang v State of Maharashtra (2013) 2 SCC 479 [LNIND 2012 SC 813], (2013) Cr LJ
651(SC) .

73 Dilip v State of Madhya Pradesh (2013) Cr LJ 2449(SC), (2013) 6 SCALE 264 [LNIND 2013 SC 468].

74 Shankar Kisanrao Khade v State of Maharashtra (2013) 5 SCC 546 [LNIND 2013 SC 429], (2013) 6 SCALE 277 [LNIND
2013 SC 429].

75 For example see, State of Karnataka v Puttaraja (2004) Cr LJ 579(SC) ; Bhupinder Sharma v State of Himachal Pradesh
(2003) 8 SCC 551; State of Madhya Pradesh v Balu (2005) 1 SCC 108 [LNIND 2004 SC 1134], (2005) Cr LJ 335(SC) ; State v
Biramlal (2005) Cr LJ 2561(SC) ; Mohd Yaseen v State (2005) Cr LJ 307(J&K) ; Kripa Ram v State (2005) Cr LJ 748(MP) ;
Ainal Uddin Ahmad v State of Assam (2004) Cr LJ 1171(Gau) ; State of Haryana v Janak Jinhh AIR 2013 SC 3246 [LNINDORD
2013 SC 35480], (2013) 9 SCC 431, (2013) Cr LJ 3317(SC) .

76 State of Punjab v Ramdev Singh AIR 2004 SC 1290 [LNIND 2003 SC 1106], (2004) 1 SCC 421, para 16.

77 Ibid. Also see Pushpanjali Sahu v State of Orissa AIR 2013 SC 1119 [LNIND 2012 SC 579], (2012) 11 SCC 433.

78 Ibid, para 1.

79 Shimbhu v State of Haryana AIR 2014 SC 739 [LNIND 2013 SC 768], (2014) Cr LJ 308(SC) .

80 Radha v State of Madhya Pradesh (2007) 12 SCC 57 [LNIND 2007 SC 1059], 2007 Cr LJ 4704(SC) .

81 Narender Kumar v State (NCT of Delhi) AIR 2012 SC 2281 [LNIND 2012 SC 347], (2012) 7 SCC 171, (2012) Cr LJ
2033(SC) .

82 Shyam Narain v State of NCT of Delhi AIR 2013 SC 2209 [LNIND 2013 SC 534], (2013) Cr LJ 3009, (2013) 7 SCC 77
[LNIND 2013 SC 534].

83 Hanuman Prasad v State of Rajasthan (2009) 1 SCC 507 [LNIND 2008 SC 2256], JT 2008 (13) SC 200 [LNIND 2008 SC
2256]; Sohan Singh v State of Bihar (2010) 1 SCC 68 [LNIND 2009 SC 1890], (2009) 6 SCR 14.

84 AIR 2003 SC 4684, (2003) 8 SCC 551.

85 Ibid, paras 14 and 15; see also Pramod Mahto v State of Bihar AIR 1989 SC 1475; Devendra Das v State of Bihar (1999) Cr
LJ 4805(Pat) ; Nitin @ Nitu Ramprasad Bachich (Dhobi) v State of Gujarat (2009) Cr LJ 2330(Guj), 2009 GLH (2) 242.

86 Uttam Kumar v State of Maharashtra (1991) Cr LJ 1644(Bom) ; Kailash Khangar v State of Madhya Pradesh (1996) Cr LJ
3189(MP) ; Debidas Rudra v State of West Bengal (2002) Cr LJ 1987(Cal), 2002 (1) CHN 129 [LNIND 2001 CAL 419]; Pradeep
Kumar v Union Administrator, Chandigarh (2006) 10 SCC 608 [LNIND 2006 SC 622], AIR 2006 SC 2992 [LNIND 2006 SC 622].
 25

87 (2006) 10 SCC 608 [LNIND 2006 SC 622], AIR 2006 SC 2992 [LNIND 2006 SC 622]; see also Pradhan @ Jitender v State
of NCT of Delhi (184) (2009) DLT 767, 2010 (1) Crimes 180.

88 Pradeep Kumar v Union Administrator, Chandigarh (2006) 10 SCC 608 [LNIND 2006 SC 622], AIR 2006 SC 2992 [LNIND
2006 SC 622].

89 Priya Patel v State of Madhya Pradesh (2006) 6 SCC 263 [LNIND 2006 SC 499], AIR 2006 SC 2639 [LNIND 2006 SC 499],
(2006) Cr LJ 362(SC) ; State of Rajasthan v Hemraj (2009) 12 SCC 403 [LNIND 2009 SC 1000], AIR 2009 SC 2644 [LNIND
2009 SC 1000].

90 Three persons found guilty of committing gang rape on a photojournalist and a telephone operator in the Shakti Mill
Compound in Mumbai in July 2013 and August 2013 are sentenced to death as they were repeat offenders. Confirmation of
their death sentence from the Bombay High Court is awaited. See the Hindu, April 4, 2014.

91 Omkar Prasad Verma v State of Madhya Pradesh AIR 2007 SC 1381 [LNIND 2007 SC 289], (2007) 4 SCC 323, (2007) Cr
LJ 1831(SC) .

92 For definition of 'public servant' see s 21, IPC.No court is allowed to take cognizance of an offence allegedly committed by a
public servant of the Central or a State Government while act ing or purporting to act in discharge of his official duty without
prior sanction of the Central Government or State Government, as the case may be: s 197(1) CrPC. However, no such sanction
is required in case of a public servant accused of any offence alleged to have been committed,inter alia, under ss 375, 376,
376A, 376C, and 376D, IPC. See s 197 explanation, CrPC (added by the Criminal Law (Amendment) Act 2013, s 18).

93 The expression 'custody' implies guardianship. Custody must be a lawful custody. The same may arise within the provisions
of the statute or act ual custody conferred by reason of an order of a court of law or otherwise: Omkar Prasad Verma v State of
Madhya Pradesh AIR 2007 SC 1381 [LNIND 2007 SC 289], (2007) 4 SCC 323, (2007) Cr LJ 1831(SC) .

94 Omkar Prasad Verma v State of Madhya Pradesh AIR 2007 SC 1381 [LNIND 2007 SC 289], (2007) 4 SCC 323, (2007) Cr
LJ 1831(SC) .

95 Section 155(4) of the Evidence Act, allowing the defence lawyer to discredit the victim's testimony by arguing that she was of
'immoral character' and questioning about her past sexual act s in the cross-examination, was deleted by the Indian Evidence
(Amendment) Act, 2003 (Act 4 of 2003). Prior to omission clause (4) read: (4) when a man is prosecuted for rape or an attempt
to ravish, it may be shown that the prosecutrix was of generally immoral character'. It also added a proviso to s 146 of the IEA.
It is not permissible now for a defence lawyer to put questions in cross-examination to the prosecutrix about her general
immoral character. This proviso is substituted by the Criminal Law (Amendment) Act 2013. It now reads: 'Provided that in a
prosecution for an offence under section 376, section 376A, section 376B,section 376C, section 376D or section 376E of the or
for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce
evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual
experience, of such victim with any person for proving such consent or the quality of consent. See the Criminal Law
(Amendment) Act 2013 s 28. The 2013 Amendment Act has also inserted s 53A in the Indian Evidence Act 1872 to make
evidence of character or previous sexual experience in rape cases irrelevant. It says: 'In a prosecution for an offence under ---
section 376, section 376A, section 376B,section 376C, section 376D or section 376E of the or for attempt to commit any such
offence, where the question of consent is in issue, evidence of the character of the victim or of such person's previous sexual
experience with any person shall not be relevant on the issue of such consent or the quality of consent'. See the Criminal Law
(Amendment) Act 2013 s 25.

1 State of Chhatisgarh v Derha AIR 2004 SC 4404 [LNIND 2004 SC 921], (2004) 9 SCC 699; Dinesh Jaiswal v State of
Rajasthan (2006) Cr LJ 1679(SC), (2006) 3 SCC 771; O M Baby (Dead) by LRs v State of Kerala (2012) 11 SCC 362 [LNINDU
2012 SC 11], (2012) Cr LJ 3794(SC) ; Ganga Singh v State of Madhya Pradesh AIR 2013 SC 3008 [LNIND 2013 SC 610],
(2013) 7 SCC 278, (2013) Cr LJ 3966(SC) .

2 State of Punjab v Gurmit Singh AIR 1996 SC 1393 [LNIND 1996 SC 2903], (1996) 2 SCC 384; Bhupinder Sharma v State of
Himachal Pradesh AIR 2003 SC 4684, (2003) 8 SCC 551, (2004) Cr LJ 1(SC) ; Aman Kumar v State of Haryana AIR 2004 SC
1497 [LNIND 2004 SC 184], (2004) 4 SCC 379, (2004) SCC (Cr) 1266, (2004) Cr LJ 1399(SC) ; State of Himachal Pradesh v
Shree Kant Shekari AIR 2004 SC 4404 [LNIND 2004 SC 921], (2004) 8 SCC 153; State of Chhattisgarh v Derha AIR 2004 SC
2636 [LNIND 2004 SC 535], (2004) 9 SCC 699, (2004) Cr LJ 2109(SC) ; Sri Narayan Saha v State of Tripura AIR 2005 SC
1452 [LNIND 2004 SC 906], (2004) 7 SCC 775; Dinesh @ Buddha v State of Rajasthan AIR 2006 SC 1267, (2006) 3 SCC 771.

3 State of Maharashtra v Chandraprakash Kewalchand Jain AIR 1990 SC 658 [LNIND 1990 SC 26], (1990) 1 SCC 550, (1990)
SCC (Cr) 210; State of Himachal Pradesh v Lekh Raj AIR 1999 SC 3916 [LNIND 1999 SC 1001], (2000) 1 SCC 247, (2000)
SCC (Cr) 147, (2000) Cr LJ 44(SC) ; Rajoo v State of Madhya Pradesh AIR 2009 SC 858 [LNIND 2008 SC 2358], (2008) 15
SCALE 357.

4 Lillu @ Rajesh v State of Haryana AIR 2013 SC 1784 [LNIND 2013 SC 435], (2013) 7 SCALE 17, (2013) Cr LJ 2446(SC) .

5 In the context of Indian culture, a victim of sexual assault would rather suffer in silence than to falsely implicate somebody.
Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not
 26

blame anyone but the real culprit. While appreciating the evidence of prosecutrix, the courts must always keep in mind that no
self-respecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore ordinarily look
for corroboration of her testimony is unnecessary and uncalled for. See Rajinder @ Raju v State of Himachal Pradesh (2009) 16
SCC 69 [LNIND 2009 SC 1396], AIR 2009 SC 3022 [LNIND 2009 SC 1396]; O M Baby (Dead) by LRs v State of Kerala (2012)
11 SCC 362 [LNINDU 2012 SC 11], (2012) Cr LJ 3794(SC) .

6 Bhupinder Sharma v State of Himachal Pradesh (2003) 8 SCC 551, AIR 2003 SC 4684; Raju v State of Madhya Pradesh
(2008) 15 SCC 133 [LNIND 2008 SC 2358], AIR 2009 SC 858 [LNIND 2008 SC 2358].

7 Bharwada Bhoginbhai v State of Gujara AIR 1983 SC 753 [LNIND 1983 SC 161]; State of Maharashtra v Chandraprakash
Kewalchand Jain AIR 1990 SC 658 [LNIND 1990 SC 26]; State of Himachal Pradesh v Lekh Raj (2000) 1 SCC 247 [LNIND
1999 SC 1001], (2000) Cr LJ 44(SC) ; Moti Lal v State of Madhya Pradesh (2008) 11 SCC 20 [LNIND 2008 SC 1427], (2008) Cr
LJ 3543(SC) .

8 Rajesh Patel v State of Jharkhand AIR 2013 SC 1497 [LNIND 2013 SC 201], (2013) 3 SCC 791, (2013) Cr LJ 2062(SC) .

9 State of Karnataka v Manjanna AIR 2000 SC 2231 [LNIND 2000 SC 812], (2000) 6 SCC 188; Visweswaran v State of Tamil
Nadu, (2003) Cr LJ 2548(SC), (2003) 6 SCC 73 [LNIND 2003 SC 481]; Sri Narayan Saha v State of Tripura (2004) 7 SCC 775
[LNIND 2004 SC 906], AIR 2005 SC 1452 [LNIND 2004 SC 906]; Ramdas v State of Maharashtra (2007) 2 SCC 170 [LNIND
2006 SC 928], AIR 2007 SC 155 [LNIND 2006 SC 928]; State of Karnataka v Raju (2007) 11 SCC 490 [LNIND 2007 SC 1074],
AIR 2007 SC 3225 [LNIND 2007 SC 1074]; Raju v State of Madhya Pradesh (2008) 15 SCC 132, AIR 2009 SC 858 [LNIND
2008 SC 2358]; Neku Khan v State of Rajasthan (2009) 11 SCC 86 [LNIND 2009 SC 22], AIR 2009 SC 1954 [LNIND 2009 SC
22]; S. Ramakrishna v State (2009) 1 SCC 133 [LNIND 2008 SC 2066], AIR 2009 SC 885 [LNIND 2008 SC 2066]; Wahid Khan
v State of Madhya Pradesh (2010) 2 SCC 9 [LNIND 2009 SC 2041], AIR 2010 SC 1 [LNIND 2009 SC 2041]; Ram Singh @
Chhaju v State of Himachal Pradesh (2010) Cr LJ 1655(SC), (2010) 2 SCC 445 [LNIND 2010 SC 116].

10 Narender Kumar v State (NCT of Delhi) AIR 2012 SC 2281 [LNIND 2012 SC 347], (2012) 7 SCC 171, (2012) Cr LJ
2033(SC) .

11 State of Punjab v Gurmit Singh AIR 1996 SC 1393 [LNIND 1996 SC 2903], (1996) 2 SCC 384; State of Rajasthan v NK AIR
2000 SC 1812 [LNIND 2000 SC 551], (2000) 5 SCC 30; State of Himachal Pradesh v Gian Chand (2001) 6 SCC 71 [LNIND
2001 SC 1124], (2001) Cr LJ 2548(SC) ; State of Himachal Pradesh v Shree Kant Shekari AIR 2004 SC 4404 [LNIND 2004 SC
921], (2004) 8 SCC 153; State of Chhattisgarh v Derha AIR 2004 SC 2636 [LNIND 2004 SC 535], (2004) 9 SCC 699; Vishnu @
Undrya v State of Maharashtra (2006) 1 SCC 283 [LNIND 2005 SC 932], (2006) Cr LJ 303(SC) ; Arjun Singh v State of
Himachal Pradesh (2009) 4 SCC 18 [LNIND 2009 SC 252], AIR 2009 SC 1568 [LNIND 2009 SC 252].

12 State of Uttar Pradesh v Pappu @ Yunus AIR 2005 SC 1248, 2005 Cri LJ 331(SC) ; S Ramakrishna v State AIR 2009 SC
885 [LNIND 2008 SC 2066], (2009) 1 SCC 133; Vijay @ Chinee v State of Madhya Pradesh (2010) 8 SCC 191 [LNIND 2010
SC 659], 2010 (7 ) SCALE 502 [LNIND 2010 SC 659]; Mohd Imran Khan v State of NCT of Delhi (2012) Cr LJ 693(SC), (2011)
10 SCC 192 [LNIND 2011 SC 1105].

13 S Ramkrishna v State AIR 2009 SC 885 [LNIND 2008 SC 2066], (2009) 1 SCC 133; Vijay @ Chinee v State of Madhya
Pradesh (2010) 8 SCC 191 [LNIND 2010 SC 659], (20 1007 SCALE 502; Mohd Imran Khan v State of NCT of Delhi (2012) Cr
LJ 693(SC), (2011) 10 SCC 192 [LNIND 2011 SC 1105].

14 Hemraj v State of Haryana (2014) 2 SCC 395 [LNIND 2005 SC 303], (2014) 1 SCALE 48,

15 State of Punjab v Ramdev Singh AIR 2004 SC 1290 [LNIND 2003 SC 1106], (2004) 1 SCC 421; State of Chhattisgarh v
Derha AIR 2004 SC 2636 [LNIND 2004 SC 535], (2004) 9 SCC 699.

16 (2005) Cr LJ 4375 (SC).

17 Ibid, at 4379.

18 Rajesh Patel v State of Jharkhand AIR 2013 SC 1497 [LNIND 2013 SC 201], (2013) 3 SCC 791, (2013) Cr LJ 2062(SC) .

19 Tameezuddin v State (NCT) of Delhi (2009) 15 SCC 566 [LNINDORD 2009 SC 430], 2009 (12) SCALE 303 [LNINDORD
2009 SC 430].

20 Ganga Singh v State of Madhya Pradesh AIR 2013 SC 3008 [LNIND 2013 SC 610], (2013) 7 SCC 278, (2013) Cr LJ
3966(SC) .

21 Raju v State of Madhya Pradesh (2008) 15 SCC 132, AIR 2009 SC 858 [LNIND 2008 SC 2358], also see, Radha v State of
Madhya Pradesh (2007) 12 SCC 57 [LNIND 2007 SC 1059], 2007 Cri LJ 4704; Bbhishan v State of Maharashtra (2007) 12
SCC 390 [LNIND 2007 SC 1103], (2008) Cr LJ 721(SC) .

22 Dayal Singh v State of Uttaranchal AIR 2012 SC 3046 [LNIND 2012 SC 458], (2012) 8 SCC 263, (2012) Cr LJ 4323(SC) ;
Radhakrishna Nagresh v State of Andhra Pradesh (2012) 12 SCALE 506 [LNIND 2012 SC 822].
 27

23 Lillu @ Rajesh v State of Haryana AIR 2013 SC 1784 [LNIND 2013 SC 435], (2013) 7 SCALE 17, (2013) Cr LJ 2446(SC) .

24 The Supreme Court has asked to serve a notice on the additional Superintendent of Police, Mhow District, Indore, Madhya
Pradesh, to show cause why an offence under s 228A of the IPC be not registered against him for disclosing identity of the two
victims of gang rape in an affidavit filed before it. See Satya Pal Anand v State of Madhya Pradesh (2013) 10 SCALE 88
[LNINDORD 2014 SC 14442].

25 Bhupinder Sharma v State of Himachal Pradesh AIR 2003 SC 4684, (2003) 8 SCC 551; State of Punjab v Ramdev Singh
AIR 2004 SC 1290 [LNIND 2003 SC 1106], (2004) 1 SCC 421; State of Karnataka v Puttaraja (2004) Cr LJ 579(SC) ; State of
Himachal Pradesh v Shree Kant Shekari AIR 2004 SC 4404 [LNIND 2004 SC 921], (2004) 8 SCC 153; Om Prakash v State of
Uttar Pradesh AIR 2006 SC 2214 [LNIND 2006 SC 382], (2006) 9 SCC 787; Dinesh Jaiswal @ Buddha v State of Rajasthan
AIR 2006 SC 1267, (2006) Cr LJ 1679(SC), (2006) 3 SCC 771.

26 (1995) 1 SCC 14 [LNIND 1994 SC 1582].

27 AIR 1996 SC 1393 [LNIND 1996 SC 2903], (1996) 2 SCC 384. The Supreme Court also re-asserted these parameters in
Bodhisattwa Gautam v Miss Subhra Chakraborty AIR 1996 SC 922 [LNIND 1995 SC 1314].

28 Chairman, Rly Board v Chandrima Das (2000) 2 SCC 465 [LNIND 2000 SC 182].

29 Satya Pal Anand v State of Madhya Pradesh (2013) 10 SCALE 88 [LNINDORD 2014 SC 14442].

30 Section 376D, IPC.

31 Section 357B, CrPC, inserted by the Criminal Law (Amendment) Act 2013 s 23.

32 Section 357A(6), CrPC.

33 Section 357C, CrPC, 1973, added to the CrPC by the Criminal Law (Amendment) Act 2013, s 23.

34 Sections 166B , IPC , inserted in the IPC by the Criminal Law (Amendment) Act 2013, s 3.

35 State of Kerala v Kundumkara Govindan (1969) Cr LJ 818(Ker), at p 823.

36 Brother John Antony v State (1992) Cr LJ 1352(Mad) at 1359.

37 See, Lohana Vasntlal Devchand v State AIR 1968 Guj 252 [LNIND 1967 GUJ 41], (1968) Cr LJ 1277(Guj) ; Raju v State of
Haryana (1998) Cr LJ 2587(P&H) ; Kishan Lal v State of Rajasthan (1998) Cr LJ 4508 (Raj); Mihir v State of Orissa (1992) Cr
LJ 488(Ori) ; Sukhdeo Singh v State of Rajasthan (2002) Cr LJ 1975(Raj) ; Mohan Ojha v State of Bihar (2002) Cr LJ 3344(Pat)
; Kailash @ Kala v State (2004) Cr LJ 310(P&H) ; Abdul Salam v State (2005) DLT 336; Anil @ Arikhony Anikswamy Joseph v
State of Maharashtra (2014) 2 SCALE 554 [LNIND 2014 SC 401].

38 (1998) Cr LJ 2428 (Del).

39 (1992) 2 Crimes 455 [LNIND 1992 ORI 104](Ori) .

40 Khandu v Emperor AIR 1934 Lah 261.

41 State of Kerala v Kurissum Moottil Antony (2007) 1 SCC 627 [LNIND 2006 SC 940]; Childline India Foundation v Allan John
Waters (2011) Cr LJ 2305(SC), (2011) 6 SCC 261 [LNIND 2011 SC 314].

42 (2010) Cri LJ 94 (Delhi), 160 (2009) DLT 277.

43 For further comments see, K I Vibhute, 'Consensual Homosexuality and the Indian Penal Code : Some Reflections on
Interplay of Law and Morality', Journal of the Indian Law Institute, 2009, vol 51, p 3.

44 AIR 2014 SC 563 [LNIND 2013 SC 1059], (2014) Cr LJ 784(SC), (2014) 1 SCC 1 [LNIND 2013 SC 1059].

45 Ibid, paras 42-43.

46 Ibid, para 52.

47 Ibid, para 30.

48 See Sakshi v Union of India AIR 2004 SC 3566 [LNIND 2004 SC 657], (2004) 5 SCC 518.

49 Law Commission of India, 'One Hundred and Seventy Second Report on Review of Rape Laws', Government of India, 2000,
paras 3.1.2.1; 3.3; 3.3.1, and 3.3.
 28

50 Government of India, Report of the Committee on Amendments to Criminal Law (Government of India, 2013), Chap 3: Rape
and Sexual Assault, paras 72-80.The Committee accordingly deleted the marital rape exception (exception2) from its proposed
section 375 and inserted 'Explanation III: Consent will not be presumed in the event of existing marital relationship between the
complainant and the accused' therein. See Appendix 4, para 7, at p 440.It also recommended insertion in its proposed s 376B
(dealing with rape on an underage girl as a separate offence) of a proviso i.e., 'Provided that the existence of marital
relationship between the accused and the underage person shall not be a valid defence'. See Appendix 4, para 12, at p 444.

51 Law Commission of India, 'One Hundred and Fifty-Sixth Report: The Indian Penal Code' Government of India, 1997, para
9.51. In the light of the Criminal Law (Amendment) Act 2013 and the Protection of Children against Sexual Offences Act, 2012,
s 377 becomes redundant in combating sexual abuse of children.

52 Law Commission of India, 'One Hundred and Seventy Second Report on Review of Rape Laws', Government of India, 2000,
para 3.6.

53 AIR 2014 SC 563 [LNIND 2013 SC 1059], (2014) Cr LJ 784(SC), (2014) 1 SCC 1 [LNIND 2013 SC 1059].