Source: Allahabad High Court

Why in News?

A bench of Justice Rajesh Singh Chauhan observed that it is well-settled that to constitute an offense of rape, complete penetration of the penis with emission of semen and rupture of the hymen is not necessary.

• The Allahabad High court gave this observation in the case of Pradum Singh v. State of U P.

What is the Background of Pradum Singh v. State of U P Case?

• The application was filed by applicant in jail for case registered against him under Sections 376AB and 506 of Indian Penal Code, 1860 (IPC) coupled with Sections 5/6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).
• As per the prosecution, the applicant, who is the neighbor of the complainant, called the 10-year-old daughter (as per First Information Report) or 12-year-old daughter (as per educational documents) of the complainant in the evening at around 9:30 PM on the pretext that his mother was calling her.
• After some time, when the complainant and her husband went to search for their daughter, they found the applicant and the daughter without clothes.
• The daughter later disclosed that the applicant had committed oral sex with her and penetrated his penis.
• The applicant filed a bail application in the High Court, claiming that he was falsely implicated and that there was no independent eyewitness or last seen evidence.
• The prosecution opposed the bail application, citing the heinous nature of the offence. The medical report also supported the prosecution's case, indicating that the victim's hymen was torn.

What were the Court’s Observations?

• The Court discussed in detail the legal position that even partial penetration or attempt at penetration is sufficient to constitute rape.
• It relied on the victim's statements, medical evidence, and Supreme Court precedents to hold that prima facie, the offence of rape is made out against the applicant, and the solitary testimony of the victim can be sufficient for conviction if it is reliable and trustworthy.
• The Court noted that "the hymen is not usually ruptured, but may become red and congested along with the inflammation and bruising of the labia. If considerable violence is used, there is often laceration of the fourchette and the perineum".
• The High Court dismissed the bail application, observing that the victim's statement and the medical examination report supported the allegations against the applicant.
• The High Court directed the Trial Court to conclude the trial within 9 months from the date of receipt of the order, taking recourse to Section 309 Code of Criminal Procedure, 1973 (CrPC) by fixing short dates or day-to-day hearings, if necessary.
  • The High Court also granted liberty to the applicant to file another bail application if the trial is not concluded within the stipulated time.

What is Definition of Rape?

Under Section 375 of IPC and Section 63 of Bharatiya Nyaya Sanhita, 2023 (BNS): A man is said to commit rape if he-

a) penetrates his penis into the vagina, mouth, urethra or anus of a woman or makes her do so with him or any other person; or

b) inserts any object or a part of the body into the vagina, urethra or anus of a woman or makes her do so with him or any other person; or

c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of the body; or

d) applies his mouth to the vagina, anus, urethra of a woman.

What are Seven Description of Offence of Rape?

• First
  • This covers cases where the woman did not consent to the sexual act and it was done by force against her will.
• Secondly
  • This includes situations where there was no active consent given by the woman for the sexual act.
• Thirdly
  • This vitiates the woman's consent if it was obtained by instilling fear of death, hurt or injury to her or someone she has an interest in.
• Fourthly
  • This covers rape by impersonation, where the woman consented believing the man was her husband.
• Fifthly
  • This includes cases where the woman's consent was obtained when she was of unsound mind, mentally incapacitated or intoxicated and unable to understand the nature of her actions.
• Sixthly
  • This makes any sexual act with a woman under 18 years of age statutory rape, even if she consented.
• Seventhly
  • This covers situations where the woman was unable to consent or communicate her non-consent, such as being unconscious.

What are the Punishments for Offences Related to Rape?

• Punishment for Rape:
  • Section 376 (1) of IPC and Section 64 (1) of BNS.
  • Rigorous imprisonment of not less than 10 years but may extend to life imprisonment, and fine.
• Aggravated Rape:
  • Section 376 (2) of IPC and Section 64 (2) of BNS.
  • Rigorous imprisonment of not less than 10 years but may extend to life imprisonment which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
• Aggravated Rape with Women under Sixteen Years:
  • Section 376 (3) of IPC and Section 65 of BNS.
  • Rigorous imprisonment for a term which shall not be less than 20 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.
• Rape Causing Death/Persistent Vegetative State:
  • Section 376A of IPC and Section 66 of BNS.
  • Rigorous imprisonment of not less than 20 years, may extend to death/life imprisonment.
• Rape of a Girl under 12 years:
  • Section 376AB of IPC and Section 65 (2) of BNS.
  • Rigorous imprisonment of not less than 20 years, may extend to life imprisonment or death penalty.
• Rape by Husband during Separation:
  • Section 376B of IPC and Section 67 of BNS.
  • Imprisonment of 2-7 years and fine.
• Sexual Intercourse by a Person in Authority:
  • Section 376C of IPC and Section 68 of BNS.
  • 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.
• Gang Rape:
  • Section 376D of IPC and Section 70 of BNS.
  • Rigorous imprisonment of not less than 20 years, may extend to life imprisonment which shall mean imprisonment for the remainder of that person's natural life and fine to meet victim's medical expenses.
• Punishment for Gang Rape on Woman under Sixteen years of age:
  • Section 376DA of IPC.
  • Imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine.
  • Fine to meet medical expenses of victim.
• Punishment for Rang Rape on Woman under Twelve years of age:
  • Section 376DB of IPC.
  • Imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine, or with death.
  • Fine to meet medical expenses of victim.
• Repeat Offenders:
  • Section 376E of IPC and Section 71 of BNS.
  • Imprisonment for life or death penalty.

What are the Major Recommendations and Amendments in Rape Law?

• 84^th Law Commission Report (1980):
  • Recommended substituting 'consent' with 'free and voluntary consent' in the definition of rape under Section 375 IPC.
  • Suggested adding threat of injury to victim or others as vitiating consent under Section 375 IPC.
  • Recommended raising age of consent to 18 years under Section 375 IPC.
  • Proposed new sections 376C, D, E to cover custodial rape by persons in authority.
• Criminal Law (Amendment) Act, 1983:
  • Introduced concept of ‘aggravated rape’ with higher punishments under Section 376(2) IPC.
  • Covered custodial rape by staff under Sections 376B, 376C, 376D IPC.
  • Shifted burden of proof on accused in custodial/gang rapes under Section 114A IEA.
• From 172^nd Law Commission Report (2000):
  • Recommended making rape laws gender neutral.
  • Suggested expanding definition of rape under Section 375 IPC to include non-penile penetration.
  • Proposed retaining marital rape exception but raising wife's age to 16 under Exception to Section 375.
  • Recommended new Section 376E IPC for 'unlawful sexual contact'.
  • Suggested provisions for recording victim statements by female officers under Section 160 CrPC.
• Justice Verma Commitee (2012):
  • Include all non-consensual penetrative acts as rape, beyond just vaginal, oral, or anal penetration.
  • Remove the marital rape exception, treating it as any other rape.
  • The relationship between victim and accused should not impact the determination of consent.
  • Life imprisonment for rape, opposing the death penalty.
  • Discontinue the two-finger test for assessing rape victims.
  • Establish a cell to provide immediate legal assistance upon FIR filing.
  • Train police officers to handle sexual offences appropriately and sensitively.
• Criminal Law (Amendment) Act, 2013:
  • Expanded definition of rape under Section 375 IPC.
  • Raised age of consent to 18 years under Section 375 IPC.
  • Introduced Sections 376A (rape causing vegetative state/death), 376D (gang rape), 376E (repeat offenders).
  • Added provisions under Section 327 CrPC for in-camera trials.
  • Introduced Section 53A IEA rendering past sexual history irrelevant.
• Criminal Law (Amendment) Act, 2018:
  • Introduced death penalty for rape of girls below 12 years (Sections 376AB, 376DB, IPC).
  • Increased minimum punishments for various rape offenses (Sections 376, 376AB, 376DA, IPC).

What are Landmark Cases on Rape?

• Tukaram and Ganpat v. State of Maharashtra (1972):
  • This case is also known as Mathura rape case.
  • The judgment of the trial court favored the accused, stating that Mathura's consent was voluntary since she was accustomed to sexual intercourse.
  • However, the Bombay High Court set aside the judgment and sentenced the accused to imprisonment.
  • The Supreme Court (SC) later acquitted the accused, sparking public outrage. This case highlighted the need for reforms in rape laws.
• State of Punjab v. Gurmit Singh (1984):
  • The Supreme Court advised the lower judiciary not to describe a victim as having a loose character even if she is shown to be habituated to sex.
  • The judgment emphasized the need to focus on the act of rape and not on the victim's character.
• Delhi Domestic Working Women v. Union of India (1995):
  • The SC laid down important guidelines in this case:
    • Providing legal representation to complainants of sexual assault cases.
    • Ensuring legal assistance and guidance of a lawyer at the police station.
    • Maintaining the anonymity of the victim in rape trials.
    • Establishing a Criminal Injuries Compensation Board.
    • Providing interim compensation to rape victims.
    • Providing medical help and allowing abortion if the victim becomes pregnant due to the rape.
• Vishaka and Others v. State of Rajasthan (1997):
  • The Supreme Court laid down guidelines to prevent sexual harassment at workplaces, in the absence of a legislative framework.
• Vijay Jadhav v. State of Maharashtra and Anr (2013):
  • This case is also known as Shakti Mills rape case.
  • The Bombay High Court declared Section 376E of the IPC, as constitutionally valid.
• Mukesh & Anr. v. State for NCT of Delhi & Ors. (2017):
  • This case is known as Nirbhaya rape case.
  • The Supreme Court upheld the death penalty awarded to the accused and stated that the case fell under the “rarest of rare” category.
  • This incident brought the 2013 criminal law amendment.