Author : Avaneesh Abhyankar, ILS Law College.
Introduction
Women, in the traditional Indian Society are considered as a motherly figure and are therefore revered in the form of Feminine Deities. However, in the modern era, this very Indian Society is facing the rampant problem of Rapes.
The Crime of Rape apart from being an extremely severe offense from the legal point of view, causes immense trauma to the victim and her family. Such a heinous crime has no place in the civilized society as we tend to call ourselves.
This Blog aims to shed light on the basics of the offense of Rape as well as the amendments in its definitions and forms that came to the fore as the Indian System Transitioned from the Indian Penal Code era to the Bharatiya Nyaya Sanhita in 2023.
Basic Definition of Rape
IPC S.375 :-
The Indian Penal code originally defined rape under S.375 as,
“A Man is said to commit rape when he has sexual intercourse with a woman under the following circumstance :-
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 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 sixteen years of age.
This was the base definition given in the IPC for the offense of Rape. 2013 saw a major amendment in the basic definition of Rape. IPC was amended owing to a major public outcry resulting from the infamous Nirbhaya Case.
The Blog will explain the Comparative analysis between IPC definition and BNS definition further in detail.
BNS S.63
The BNS continues further from the IPC and the circumstances remain largely unchanged.
However a major point of change is the commission or the essentials of the offense itself.
The changes to the circumstances are extremely minute as only the age of Majority of the girl/woman is increased from sixteen years of age to eighteen years of age.
The changes to the definition of Rape under BNS are as follows :-
63(a):-
A Man 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
63(b):-
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
63(c):-
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 and makes her to do so with him or any person ; or
63(d):-
Applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person.
A Critical overview can be drawn from the changes done to the offense of Rape under BNS than that given under IPC,
IPC only mentioned the Circumstances under which the offense of rape could be committed.
BNS mentioned the various tweaks in the essentials of the offense of Rape itself mentioning the basic conditions which are required to fulfil the offense of Rape.
The main element of the amendment under BNS is ‘Penetration’.
Under the IPC, Penetration of the penis was not an essential of Rape.
However, as has been amended, an idea which supports any type of penetration and not only that of the penis can be drawn from a famous 1994 landmark case.
The offender was convicted for the offense of Rape and was sentenced to 5 years imprisonment. The main essence of this case proved to be ‘penetration’ as the convict inserted a finger inside the vagina of the 5 year old victim. The Court confirmed from this case that not only presence of semen is required but also penetration of a part is needed.
Aggravated Forms of Rape
Certain aggravated forms of rape such as Rape of a Woman under 16 years of age, Rape of a Woman under 12 years of age, Gang Rape, etc. are prescribed with special punishments above the base punishment given for rape under the BNS.
The main change in the punishments prescribed for aggravated rape is that Death Penalty is admissible and the court can prescribe the death penalty in rarest of rare cases.
Punishment for Rape
S.64 of the BNS prescribes the base punishment for the offense of rape which satisfies the conditions and circumstances given in S.63 of the BNS.
“ Rigorous Imprisonment for more than 10 years which may also extend to life imprisonment and also fine.”
S.65 of the BNS prescribes punishments for Aggravated forms of Rape for the offender,
Rape of a woman under 16 years of age –
“Rigorous Imprisonment for not less than 20 years which may also extend to life imprisonment and also fine.”
Rape of a woman under 12 years of age –
“Rigorous Imprisonment for not less than 20 years which may extend to life imprisonment and fine or with Death.”
Gang Rape is the most heinous form of Rape as it involves more than one person committing the offense of Rape on the same woman.
S.70 has stated the essential of Common Intention to constitute the offense of Gang Rape and each of the person is individually liable for the offense of Gang Rape.
The Punishment to the offense of Gang Rape is as follows –
“ Rigorous imprisonment for not less than 20 years which may extend to life imprisonment and also fine.”
Gang Rape on a Woman under 18 years of Age –
“ Life Imprisonment, for the remainder of the person’s natural life and fine or with Death.”
Conclusion
The Offense of Rape is a serious offense in any legal system in the World. The Indian Legal system has a strong punishment in place to punish the convicts and deter potential offenders from engaging in the offense of Rape.
The Presence of Death Penalty for aggravated forms of Rapes acts as a major deterrent to the offense of Rape. The point of concern however, is the penal system sufficient enough to punish the offenders of rape in an adequate manner?
The National Crime Records Bureau (NCRB) Report of 2021 kept the number of rape cases registered in the year at 31677, which averaged 86 reported cases daily. The number of unregistered cases is sure to be higher than this.
The Justice system has a huge task on its hands to curb this rampant number of Rape cases taking place in India Daily. The Youth of the country, while being the constructive power for the country, are turning out to be destructive because of unemployment. The Government must work towards providing proper Education and employment to these youth. Sexual Education which is still largely considered a taboo should be taught in schools for the knowledge of the children to know the nuances of the various offenses relating to women.
Legal Aid must be imparted to schoolchildren about the criminal justice system in India as a whole. Having a basic knowledge about the various legal theories related to crime will help in generating the awareness in the field of Law among the younger.
The Indian Society thereby must unite against the offense of rape which would make the quality of life better for our women in India.
