Indian society like any other society in the world has also seen this atrocity on women called Rape, happening from the past. Though the law got stronger and stronger but these incidents did not stop, even increased. So, what was happening in Actual?

In the present, it is hard to say whether these incidents have increased or the number of reporting of these incidents have increased due to strict laws and awareness leading to a great numbers of cases as it is seen in the past that many cases of rape have gone unreported due to lack of awareness, improper enforcement of law and the inappropriate treatment of the family and society towards the rape victim.

One thing is for sure about present that these incidents are happening and need to stop for overall welfare. Government and social workers are trying various ways to eradicate this problem to make India, “Rape free” and one of these ways was the Criminal Law Amendment in 2013 and 2018. These Amendments were mainly focused on making the law stricter for the offences against women. However, it is still a dream as even after the Amendment, India recorded an average 87 rape cases every day in 2019 and 4,05,861 cases of crimes against women during the year, a rise of over seven per cent from 2018  as showed by the  latest data released by the National Crime Records Bureau.[1]Without delving into the statistics further, let’s talk about the law and the procedure.

Definition of Rape:

Rape has been defined in Section 375 of Indian Penal Code as:

A man is said to commit “rape” if he –

1. 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
2. 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
3. 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
4. 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:

• Against her will.
• Without her consent.
• 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.
• 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.
• 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.
• With or without her consent, when she is under eighteen years of age.
• When she is unable to communicate consent.

For further clarifications, the legislation has also provided explanations which are as follows:

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.

It was also provided in the explanation that a woman who does not physically resist to the act of penetration shall not due to the fact that she is not resisting to the penetration, be regarded as consenting to the sexual activity.

There were also two acts of the same kind which the legislation kept outside the purview of the Rape and they are the exceptions mentioned below:

Exception 1:A medical procedure or intervention shall not constitute rape.

Exception 2: Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

The second exception provides that any kind of sexual intercourse by a man with his wife who is above the age of 15 years whether with or without consent is not Rape. So, the exception excluded even the marital rape with a wife who is above 15 years from the ambit of Rape under this Section. On the other hand, the sexual intercourse with a wife below the age of 15 years whether with or without consent was Rape. This exception was challenged for the rights of the woman who got married between the age of 15 to 18 years as they were not adult as per the constitution and any kind of sexual act with them during that age whether with or without consent was the violation of their Right to life as a child and the Supreme Court in Independent Thought vs. Union Of India(2017) 10 SCC 800on 11th October, 2017 held that “Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years is liable to be struck down on the following grounds:–

1. It is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the Constitution of India;
2. It is discriminatory and violative of Article 14 of the Constitution of India and;
3.  It is inconsistent with the provisions of POCSO, which must prevail.

Therefore, Exception 2 to Section 375 IPC is read down as follows:

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape”.

It is, however, made clear that this judgment will have prospective effect. It is also clarified that Section 198(6) of the Criminal Procedure Code will apply to cases of rape of “wives” below 18 years, and cognizance can be taken only in accordance with the provisions of Section 198(6) of the Code. At the cost of repetition, it is reiterated that nothing said in this judgment shall be taken to be an observation one way or the other with regard to the issue of “marital rape”.

So, after this judgment, the sexual relationship with a wife below the age of 18 years i.e. minor wife, whether with or without consent becomes Rape.

Also the definition under Section 375 only involves the Act of rape committed by a Man with a woman. However, it does not provide for other kind of Rape like Forceful Sexual Intercourse by a woman with a woman or by a man with a man or by a woman with a man. These kinds of acts are covered under Section 377, “Unnatural offences” of Indian Penal Code.

As per Section 377, “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.” It is also explained that Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this Section.

The Section includes the words like“against the order of nature”. Against the order of nature meansanAct or behavior whichis something contrary to the order of nature i.e. unnatural.  Order of nature means the events which are normal and expected to happen naturally if there is no artificial or manmade obstruction to the same. As per Section 377, only the penis-vaginal sexual intercourse is natural and all other forms of carnal intercourse such as anal or oral are unnatural.

This definition also restricted the freedom of sexual relationships within the LGBT community as every act which was not a penis-vaginal sexual intercourse was against the course of nature whether with or without consent and was an offence under Section 377. However, later in 2018, Supreme Court provided judgment in Navtej Singh Johar vs. Union of India, (2018) 10 SCC 1, on 6th September 2018 and held Section 377 unconstitutional in so far as it criminalizes consensual (with consent) sexual acts of adults while providing that it will continue to govern non-consensual (without consent) sexual acts against adults, all acts of carnal intercourse against minors and acts of bestiality (sexual intercourse between a human and animal).

So, in cases of consensual carnal intercourse between adults, Section 377 is not applicable. But, if the carnal intercourse occurs with

1. a minor whether with or without his/her consent, or
2. with an adult without his or her consent, or
3. with an animal by a human

Section 377 will be applicable and that intercourse will be treated as an offence.

Punishments for Rape in Indian Penal Code

Non-bailable and Cognizable

The law provided rigorous punishment for the Rape and made it cognizable and Non-bailable.Cognizable offences are those offences in which the police file an F.I.R. under Section 154 CRPC and can start the investigation and make an arrest immediately after the receipt of the information regarding commission of the offence without the order of the Magistrate for investigation and warrant for Arrest. Section 376, Section 376 A, Section 376 AB, Section 376 C, Section 376DA, Section 376 DB and Section 377are Non-bailable and Cognizable as per Schedule 1 of Indian Penal Code. However, only Section 376 B is cognizable and bailable. Anticipatory bail (Bail before Arrest) cannot be granted under the offence punishable in Section 376, 376 AB, 376DA, 376 DB of IPC as per Section 438 of CRPC.

Notice to public prosecution must be given within 15 days of receipt of bail application in Section 376, 376 AB, 376 DA, and 376DB and no bail application can be heard in the absence of the informant or any person authorized by her/him if the Rape victim is below age of 16 years. 

All these offences are triable (trial to be held) by Court of Session. Generally, in rape cases, the accused is presumed Guilty and the Burden of Proof lies on accused to prove himself innocent. In some cases, the trials can be fast.

Procedure in law

The procedure after the commission of Offence of Rape is as follows:

1. On the complaint or information of the Victim or any of his family or close friend or relative or a person who has witnessed a crime or who has information about the crime, police lodges a FIR, and provides the copy of the FIR to the Complainant, free of cost. If the information is provided orally, then the police officer or any other person as per his instructions will reduce it into writing and will read it over to the informant, after which the informant will sign it only. If the place where the crime was committed and the place where the information to the police is provided are different then the police file a zero FIR and transfer the case to the place where offence was committed.
2. Police will begin the investigation immediately as soon as the complaint is received as these are the cognizable offences and here the order of investigation by Magistrate is not needed to start the investigation.
3. The police officer records the statement of the victim and other witnesses under Section 161 separately and makes a separate and true record. The statement of the victim of these kinds of offences which involve sexual assault, harassment and Rape has to be recorded by the female officer so that victim can provide the whole crime story in detail without hesitation. This statement can only be used:
4. By prosecution (counsel of the state who has the burden to prove the accused guilty) with permission of the court to contradict (confront) witness (including victim), if he turned hostile (speaks something in the court which is different from the version of the prosecution theory regarding crime or offence); or
5. By the accused to create doubt in prosecution theory, if duly proved; or
6. By the prosecution in re-examination of witness, for explanation of any matter referred to in his cross-examination.

Examination of Accused under Section 161 by police is popularly known as interrogation and the statement stated during this interrogation is not admissible in court as evidence. Also the statement of the witness under this section stated before police cannot be used as an evidence for corroboration (confirmation or supporting a prior evidence, statement, theory, or finding). It can only be used for the purposes aforesaid.

7. As soon as the police get informed regarding rape or sexual harassment, they bring the victim before the Magistrate to get the statement recorded as per the procedure mentioned under Section 164 as the statement recorded under this Section before Magistrate has the power as an evidence to get admitted into the court for the purpose of both corroboration and contradiction. The statement of the Accused also get recorded before Magistrate under this section whether confession or not. The statement under this section only gets recorded before the stage of inquiry and trial i.e. during the investigation. If the Accuse wants to make confession then before recording that, Magistrate explains to the person that he is not bound to make a confession and that, if he does so, it may be used as evidence against him. Also the Magistrate always questions the person to make sure that Accused is making the confession voluntarily not due to any influence or force. Generally Magistrate sends the accused to judicial custody (jail) after police custody even if the Accused wants to confess and only after the judicial custody, he records the statement of the accused to make sure that the impression of police is removed from the Accused’s mind and he gives the statement voluntary. If the accused denies before recording of the confession, that he is not willing to make confession, then the Magistrate do not sends the accused to the police custody again to make sure that he is not forced by the police to make confession. The copy of this statement or confession along with copies of other statements, police report and documents provided with it and also the copy of the FIR get furnished to the Accused free of cost by Magistrate.

8. The police also get the medical examination done of the victim under Section 164-A with her consent within 24 hrs. from the time of receipt of the information regarding offence commission to make sure that the proper evidence of the commission of offence like Rape or Sexual Assault can be obtained as the large time gap between the commission of offence and medical examination creates doubt on the authenticity of the report of medical examination in certain circumstances. It is also in better interest of the case that the victim should go for the medical examination just after the commission of the offence as soon as possible without changing the dress and taking a bath if possible so that the strong evidences can be collected from the victim’s body and clothes.

9. After the arrest of Accused is made, police presents him before Magistrate within 24 hrs. of Arrest but can take the remand of the Accused from the Magistrate again to complete the investigation but this remand can only be granted up to a limited period.

10. If the police arrests number of suspects, then the police brings the victim to the place where suspects are present and ask the victim or witness to identify the accused through an official identification parade.

11. Accused is also sent by the police for a thorough medical examination under Section 53 of CRPC.

12. Also during the period of 60 days or 90 days as the case may be after the arrest during which remand can be given, if police do not submit the charge sheet against the Accused and the accused applies for the Bail, the Accused after the expiry of aforesaid period becomes eligible to get Bail by default, however if the charge sheet get submitted by the police then the accused cannot get bail by default under Section 167 but can get it in other provisions. To make sure that the right of the Accused does not get defeated, the courts have provided that bail should be disposed on the same day under Section 167. The magistrate needs to record the reason for which he grants the custody. He cannot grant the police custody of the Accused without any reason.

13. When the evidences against the Accused are not sufficient then police can release him within 24 hrs. of the Arrest on execution of bonds, with or without sureties.

14. During the investigation, the investigating officer has to write the case dairy day by day of every proceeding. The Police must complete the investigation of a rape with child within 30 days and furnish the report to Magistrate.

15. When the evidence against the Accused are sufficient then the police sends him to the Magistrate under custody with the police report (Charge sheet) and with report of medical examination and the magistrate takes the cognizance, prepare charge and refers the case for inquiry or trial.

16.The accused gets the fair chances to get bail during the whole procedure before or after arrest.

17. During Trial, the accused also gets the fair chances to prove the prosecution theory doubtful and the accused is held guilty only if the prosecution proves the guilt beyond reasonable doubt. The trial of the rape cases are held in-camera and not open to the general public and media to protect the privacy of the accused and victim.

18. After the conviction i.e. when the Trial court finds accused guilty, he can make appeals against the conviction.

Fake Promise to Marry

As per the law, if the consent of the women for the sexual intercourse was obtained on the fake promise to marry by the man though he did not have the intention to marry the women, then the intercourse is considered Rape. However, not every breach of promise is Rape.

The Supreme Court in April 2019, in Anurag Soni vs. State of Chhattisgarh MANU/SC/0522/2019 increased the ambit of Consent regarding Rape by interpreting the Section 375 and Section 90 of IPC together. Supreme Court in this case stated that “if it is established and proved that from the inception(start), the Man who gave the promise to woman to marry, did not have any intention to marry and the woman gave the consent for sexual intercourse on such an assurance by the Accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the Indian Penal Code and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined Under Section 375 of the Indian Penal Code and can be convicted for the offence Under Section 376 of the Indian Penal Code.”

Later, The Supreme Court on 21st August 2019, in Pramod Suryabhan Pawar vs. The State of Maharashtra &Anr., Criminal Appeal No. 1165 of 2019, stated that as per Section 90, “consent” based on a “misconception of fact” is not consent in the eyes of the law…

There is a distinction between a false promise given on the understanding by the maker (man) that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled….

Where the promise to marry is false and the intention of the maker (man) at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman’s “consent”. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The “consent” of a woman under Section 375 is vitiated on the ground of a “misconception of fact” where such misconception was the basis for her choosing to engage in the said act….

To summarize the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.

It is clear from the above stated judgment that not every breach of promise amounts to Rape and there are certain conditions on the basis of which an Accused can be held guilty for Rape on the ground of fake promise to marry which are as follows:

1. Accused must not have the intention to marry the woman from the start especially at the time when he gave the promise to marry.
2. The woman must have given consent only on the assurance given by Accused regarding marrying her.

So, the promise which was given in good faith but could not be fulfilled later cannot become the ground for this offence. The prosecution must prove that the promise to marry was a promise given with no intention to honor it, and that such a promise was the only reason why a woman agreed to a sexual relationship to prove accused guilty of Rape under Section 375 read with Section 90.

Special features of POCSO ACT

The Protection of Children from Sexual Offences (POCSO) Act, 2012 provides the special procedures, guidelines and punishments for the sexual offences against children. Some special features of the Act regarding Rape are as follows:

1. Offences are cognizable and Non-bailable.
2. Same guidelines for granting and refusing Bail as any other non-bailable offence.
3. Provisions of CRPC to be followed for Bail like Section 437, 438 and 439.
4. Consent of girl for sexual intercourse is not a valid consent.
5. Accused of Offence provided in sections like Section 3, 5, 7, 9 etc. of the Act is assumed guilty and as per Section 29, has less chance to get Bail.
6. Can get bail if there are incongruities and anomalies that may be evident from the material on record.
7. Special Courts to take the cognizance, prepare charge against accused and for Trial.

Remedies against False Rape Cases of Offence:

Following remedies are provided by the law after the accused get released or acquitted from the false charge of Rape:

1. Criminal complaint under Indian Penal Code against the people for malicious prosecution and false implication who maliciously prosecuted and falsely implicated a man in a Rape Case including Woman, Public Servant, Witness, Police, Magistrate etc.
2. Civil Suit for the Compensation.

Want to file a Complaint for offence of Rape

If you want to file the complaint regarding the offence of Rape and need help whether you are a victim or any other person i.e. the one who has the information about the offence, you can file a complaint to the nearest police station or on the online website of the State Police Department. It is not necessary that the police station should be the one in whose area the offence is committed or victim or accused resides. You can also inform the authorities on phone and can also get the help of the social organizations by contacting below:

1. Central Social Welfare Board -Police Helpline: 1091/ 1291, (011) 23317004
2. Child Line: 1098
3. Ambulance: 1099
4. Shakti Shalini: 10920
5. Delhi Commission for Women: (011) 23379181/ 23370597
6. Women’s Cell, Delhi Police: (011) 24673366 / 4156 / 7699
7. National Human Rights Commission: (011) 23385368/9810298900
8. Shakti Shalini (Women’s shelter) : (011) 24373736/ 24373737
9. SAARTHAK: (011) 26853846/ 26524061
10. Joint Women’s Programme (also has branches in Bangalore, Kolkata, Chennai): (011) 24619821
11. Sakshi – violence intervention center: (0124) 2562336/ 5018873
12. Saheli – a women’s organization: (011) 24616485 (Saturdays)
13. NirmalNiketan: (011) 27859158
14. NariRakshaSamiti: (011) 23973949
15. RAHI Recovering and Healing from Incest – A support centre for women survivors of child sexual abuse: (011) 26238466/ 26224042, 26227647 So, in conclusion we can say that law is trying to strike a balance between the rights of the accused and the victim with the new changes and though it got stricter for the accused but it doesn’t mean that it has forgotten the rights of an accused as another human being. However, once the Accused is found guilty, then in present law, after the exhaustion of remedies available to challenge the conviction, the punishment is nerve-wrecking.

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Source:[1]https://ncrb.gov.in/sites/default/files/crime_in_india_table_additional_table_chapter_reports/Table%203A.3_2.pdf

https://ncrb.gov.in/sites/default/files/crime_in_india_table_additional_table_chapter_reports/Table%203A.1_2.pdf

Also Read: Inspection of Electronic Record in Rape Trials