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About the author I-5
Preface I-7
List of Cases I-27
SECTION
CHAPTER I PRELIMINARY
1. Short title, commencement and application 1
2. Definitions 8
3. General explanations 41
CHAPTER II OF PUNISHMENTS
4. Punishments 65
5. Commutation of sentence 80
6. Fractions of terms of punishment 83
7. Sentence may be (in certain cases of imprisonment) wholly or partly rigorous or simple 84
8. Amount of fine, liability in default of payment of fine, etc. 84
9. Limit of punishment of offence made up of several offences 87
10. Punishment of person guilty of one of several offences, judgment stating that it is doubtful of which 90
11. Solitary confinement 92
12. Limit of solitary confinement 93
13. Enhanced punishment for certain offences after previous conviction 94
CHAPTER III
GENERAL EXCEPTIONS
14. Act done by a person bound, or by mistake of fact believing himself bound, by law 100
15. Act of Judge when acting judicially 106
16. Act done pursuant to judgment or order of Court 109
17. Act done by a person justified, or by mistake of fact believing himself justified, by law
18. Accident in doing a lawful act
19. Act likely to cause harm, but done without criminal intent, and to prevent other harm 116
20. Act of a child under seven years of age 120
21. Act of a child above seven and under twelve years of age of immature understanding 121
22. Act of a person of unsound mind 123
23. Act of a person incapable of judgment by reason of intoxication caused against his will 140
24. Offence requiring a particular intent or knowledge committed by one who is intoxicated 142
25. Act not intended and not known to be likely to cause death or grievous hurt, done by consent 145
26. Act not intended to cause death, done by consent in good faith for person’s benefit 147
27. Act done in good faith for benefit of child or person of unsound mind, by, or by consent of guardian 148
28. Consent known to be given under fear or misconception 150
29. Exclusion of acts which are offences independently of harm caused 154
30. Act done in good faith for benefit of a person without consent 154
31. Communication made in good faith 156
32. Act to which a person is compelled by threats 158
33. Act causing slight harm 162
Of Right of Private Defence
34. Things done in private defence 163
35. Right of private defence of body and of property 170
36. Right of private defence against act of a person of unsound mind, etc. 173
SECTION
37. Acts against which there is no right of private defence 174
38. When right of private defence of body extends to causing death 178
39. When such right extends to causing any harm other than death 182
40. Commencement and continuance of right of private defence of body 182
41. When right of private defence of property extends to causing death 183
42. When such right extends to causing any harm other than death 185
43. Commencement and continuance of right of private defence of property 186
44. Right of private defence against deadly assault when there is risk of harm to innocent person 187
CHAPTER IV
OF ABETMENT, CRIMINAL CONSPIRACY AND ATTEMPT
Of Abetment
45. Abetment of a thing 194
46. Abettor 208
47. Abetment in India of offences outside India 212
48. Abetment outside India for offence in India 213
49. Punishment of abetment if act abetted is committed in consequence and where no express provision is made for its punishment 213
50. Punishment of abetment if person abetted does act with different intention from that of abettor 217
51. Liability of abettor when one act abetted and different act done 217
52. Abettor when liable to cumulative punishment for act abetted and for act done 220
53. Liability of abettor for an effect caused by act abetted different from that intended by abettor 221
54. Abettor present when offence is committed 222
55. Abetment of offence punishable with death or imprisonment for life 223
56. Abetment of offence punishable with imprisonment 224
57. Abetting commission of offence by public or by more than ten persons 226
58. Concealing design to commit offence punishable with death or imprisonment for life 226
59. Public servant concealing design to commit offence which it is his duty to prevent 227
60. Concealing design to commit offence punishable with imprisonment 228 Of Criminal Conspiracy
61. Criminal conspiracy 232 Of Attempt
62. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment 254
CHAPTER V OF OFFENCES AGAINST WOMAN AND CHILD
63. Rape
64. Punishment for rape
65. Punishment for rape in certain cases
66. Punishment for causing death or resulting in persistent vegetative state of victim
67. Sexual intercourse by husband upon his wife during separation 303
68. Sexual intercourse by a person in authority 304
69. Sexual intercourse by employing deceitful means, etc. 305
70. Gang rape 308
71. Punishment for repeat offenders 312
72. Disclosure of identity of victim of certain offences, etc. 312
73. Printing or publishing any matter relating to Court proceedings without permission 314 Of criminal force and assault against woman
74. Assault or use of criminal force to woman with intent to outrage her modesty 315
75. Sexual harassment
76. Assault or use of criminal force to woman with intent to disrobe
77. Voyeurism
78. Stalking
79. Word, gesture or act intended to insult modesty of a woman 324 Of offences relating to marriage
80. Dowry death
81. Cohabitation caused by man deceitfully inducing belief of lawful marriage
82. Marrying again during lifetime of husband or wife
83. Marriage ceremony fraudulently gone through without lawful marriage
84. Enticing or taking away or detaining with criminal intent a married woman
85. Husband or relative of husband of a woman subjecting her to cruelty 353
86. Cruelty defined 353
87. Kidnapping, abducting or inducing woman to compel her marriage, etc.
Of causing miscarriage, etc.
88. Causing miscarriage
89. Causing miscarriage without woman’s consent
90. Death caused by act done with intent to cause miscarriage
91. Act done with intent to prevent child being born alive or to cause to die after birth
92. Causing death of quick unborn child by act amounting to culpable homicide
Of offences against child
93. Exposure and abandonment of child under twelve years of age, by parent or person having care of it
94. Concealment of birth by secret disposal of dead body
95. Hiring, employing or engaging a child to commit an offence
96. Procuration of child
97. Kidnapping or abducting child under ten years of age with intent to steal from its person
98. Selling child for purposes of prostitution, etc.
99. Buying child for purposes of prostitution, etc.
CHAPTER VI OF OFFENCES AFFECTING THE HUMAN BODY
117. Voluntarily causing grievous hurt
118. Voluntarily causing hurt or grievous hurt by dangerous weapons or means
119. Voluntarily causing hurt or grievous hurt to extort property, or to constrain to an illegal act
120. Voluntarily causing hurt or grievous hurt to extort confession, or to compel restoration of property 509
121. Voluntarily causing hurt or grievous hurt to deter public servant from his duty 512
SECTION
122. Voluntarily causing hurt or grievous hurt on provocation 515
123. Causing hurt by means of poison, etc., with intent to commit an offence 516
124. Voluntarily causing grievous hurt by use of acid, etc. 519
125. Act endangering life or personal safety of others 521 Of wrongful restraint and wrongful confinement
126. Wrongful restraint 525
127. Wrongful confinement 528 Of criminal force and assault
128. Force 534
129. Criminal force 536
130. Assault 538
131. Punishment for assault or criminal force otherwise than on grave provocation 540
132. Assault or criminal force to deter public servant from discharge of his duty 541
133. Assault or criminal force with intent to dishonour person, otherwise than on grave provocation 544
134. Assault or criminal force in attempt to commit theft of property carried by a person 545
135. Assault or criminal force in attempt to wrongfully confine a person 546
136. Assault or criminal force on grave provocation 546 Of kidnapping, abduction, slavery and forced labour
137. Kidnapping 547
138. Abduction 555
139. Kidnapping or maiming a child for purposes of begging 557
140. Kidnapping or abducting in order to murder or for ransom, etc. 559
141. Importation of girl or boy from foreign country 563
142. Wrongfully concealing or keeping in confinement, kidnapped or abducted person 563
143. Trafficking of person 565
144. Exploitation of a trafficked person 568
145. Habitual dealing in slaves 569
146. Unlawful compulsory labour 569
CHAPTER VII
OF
OFFENCES AGAINST THE STATE
147. Waging, or attempting to wage war, or abetting waging of war, against Government of India 571
148. Conspiracy to commit offences punishable by section 147 576
149. Collecting arms, etc., with intention of waging war against Government of India 578
150. Concealing with intent to facilitate design to wage war 579
151. Assaulting President, Governor, etc., with intent to compel or restrain exercise of any lawful power 579
152. Act endangering sovereignty, unity and integrity of India 580
153. Waging war against Government of any foreign State at peace with Government of India 582
154. Committing depredation on territories of foreign State at peace with Government of India 583
155. Receiving property taken by war or depredation mentioned in sections 153 and 154 584
156. Public servant voluntarily allowing prisoner of State or war to escape 584
157. Public servant negligently suffering such prisoner to escape 585
158. Aiding escape of, rescuing or harbouring such prisoner 585
CHAPTER VIII
OF
OFFENCES RELATING TO THE ARMY, NAVY AND AIR FORCE
159. Abetting mutiny, or attempting to seduce a soldier, sailor or airman from his duty 587
160. Abetment of mutiny, if mutiny is committed in consequence thereof 588
161. Abetment of assault by soldier, sailor or airman on his superior officer, when in execution of his office 588
162. Abetment of such assault, if assault committed 590
163. Abetment of desertion of soldier, sailor or airman 590
164. Harbouring deserter 591
165. Deserter concealed on board merchant vessel through negligence of master 591
SECTION
166. Abetment of act of insubordination by soldier, sailor or airman 592
167. Persons subject to certain Acts 592
168. Wearing garb or carrying token used by soldier, sailor or airman 593
CHAPTER IX OF OFFENCES RELATING TO ELECTIONS
169. Candidate, electoral right defined 594
170. Bribery 595
171. Undue influence at elections 598
172. Personation at elections 600
173. Punishment for bribery 602
174. Punishment for undue influence or personation at an election 602
175. False statement in connection with an election 602
176. Illegal payments in connection with an election 603
177. Failure to keep election accounts 604
CHAPTER X OF OFFENCES RELATING TO COIN, CURRENCY-NOTES, BANK-NOTES, AND GOVERNMENT STAMPS
178. Counterfeiting coin, Government stamps, currency-notes or bank-notes 605
179. Using as genuine, forged or counterfeit coin, Government stamp, currency-notes or bank-notes 608
180. Possession of forged or counterfeit coin, Government stamp, currency-notes or bank-notes 609
181. Making or possessing instruments or materials for forging or counterfeiting coin, Government stamp, currency-notes or bank-notes 610
182. Making or using documents resembling currency-notes or bank-notes 611
183. Effacing writing from substance bearing Government stamp, or removing from document a stamp used for it, with intent to cause loss to Government 613
184. Using Government stamp known to have been before used 613
SECTION
185. Erasure of mark denoting that stamp has been used 614
186. Prohibition of fictitious stamps 615
187. Person employed in mint causing coin to be of different weight or composition from that fixed by law 616
188. Unlawfully taking coining instrument from mint 616
CHAPTER XI
OF OFFENCES AGAINST THE PUBLIC TRANQUILITY
189. Unlawful assembly 618
190. Every member of unlawful assembly guilty of offence committed in prosecution of common object 634
191. Rioting 647
192. Wantonly giving provocation with intent to cause riot-if rioting be committed; if not committed 651
193. Liability of owner, occupier, etc., of land on which an unlawful assembly or riot takes place 653
194. Affray 656
195. Assaulting or obstructing public servant when suppressing riot, etc. 658
196. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony 659
197. Imputations, assertions prejudicial to national integration 663
CHAPTER XII
OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS
198. Public servant disobeying law, with intent to cause injury to any person 667
199. Public servant disobeying direction under law 668
200. Punishment for non-treatment of victim 669
201. Public servant framing an incorrect document with intent to cause injury 670
202. Public servant unlawfully engaging in trade 672
203. Public servant unlawfully buying or bidding for property 674
204. Personating a public servant 675
205. Wearing garb or carrying token used by public servant with fraudulent intent 677
CHAPTER XIII
OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC SERVANTS
206. Absconding to avoid service of summons or other proceeding 679
207. Preventing service of summons or other proceeding, or preventing publication thereof 680
208. Non-attendance in obedience to an order from public servant 681
209. Non-appearance in response to a proclamation under section 84 of Bharatiya Nagarik Suraksha Sanhita, 2023 685
210. Omission to produce document or electronic record to public servant by person legally bound to produce it 686
211. Omission to give notice or information to public servant by person legally bound to give it 687
212. Furnishing false information 689
213. Refusing oath or affirmation when duly required by public servant to make it 691
214. Refusing to answer public servant authorised to question 691
215. Refusing to sign statement 693
216. False statement on oath or affirmation to public servant or person authorised to administer an oath or affirmation 693
217. False information, with intent to cause public servant to use his lawful power to injury of another person 694
218. Resistance to taking of property by lawful authority of a public servant 698
219. Obstructing sale of property offered for sale by authority of public servant 699
220. Illegal purchase or bid for property offered for sale by authority of public servant 700
221. Obstructing public servant in discharge of public functions 701
222. Omission to assist public servant when bound by law to give assistance 703
223. Disobedience to order duly promulgated by public servant 704
224. Threat of injury to public servant 708
225. Threat of injury to induce person to refrain from applying for protection to public servant 709
SECTION
226. Attempt to commit suicide to compel or restrain exercise of lawful power 710
CHAPTER XIV
OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE
227. Giving false evidence 712
228. Fabricating false evidence 717
229. Punishment for false evidence 718
230. Giving or fabricating false evidence with intent to procure conviction of capital offence 722
231. Giving or fabricating false evidence with intent to procure conviction of offence punishable with imprisonment for life or imprisonment 724
232. Threatening any person to give false evidence 725
233. Using evidence known to be false 726
234. Issuing or signing false certificate 727
235. Using as true a certificate known to be false 728
236. False statement made in declaration which is by law receivable as evidence 729
237. Using as true such declaration knowing it to be false 731
238. Causing disappearance of evidence of offence, or giving false information to screen offender 732
239. Intentional omission to give information of offence by person bound to inform 738
240. Giving false information respecting an offence committed 739
241. Destruction of document or electronic record to prevent its production as evidence 740
242. False personation for purpose of act or proceeding in suit or prosecution 741
243. Fraudulent removal or concealment of property to prevent its seizure as forfeited or in execution 742
244. Fraudulent claim to property to prevent its seizure as forfeited or in execution 743
245. Fraudulently suffering decree for sum not due 744
246. Dishonestly making false claim in Court 744
SECTION
247. Fraudulently obtaining decree for sum not due 745
248. False charge of offence made with intent to injure 746
249. Harbouring offender 749
250. Taking gift, etc., to screen an offender from punishment 751
251. Offering gift or restoration of property in consideration of screening offender 752
252. Taking gift to help to recover stolen property, etc. 754
253. Harbouring offender who has escaped from custody or whose apprehension has been ordered 755
254. Penalty for harbouring robbers or dacoits 758
255. Public servant disobeying direction of law with intent to save person from punishment or property from forfeiture 759
256. Public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture 760
257. Public servant in judicial proceeding corruptly making report, etc., contrary to law 762
258. Commitment for trial or confinement by person having authority who knows that he is acting contrary to law 763
259. Intentional omission to apprehend on part of public servant bound to apprehend 765
260. Intentional omission to apprehend on part of public servant bound to apprehend person under sentence or lawfully committed 766
261. Escape from confinement or custody negligently suffered by public servant 767
262. Resistance or obstruction by a person to his lawful apprehension 768
263. Resistance or obstruction to lawful apprehension of another person 770
264. Omission to apprehend, or sufferance of escape, on part of public servant, in cases not otherwise provided for 773
265. Resistance or obstruction to lawful apprehension or escape or rescue in cases not otherwise provided for 774
266. Violation of condition of remission of punishment 775
267. Intentional insult or interruption to public servant sitting in judicial proceeding 776
SECTION
268. Personation of assessor 779
269. Failure by person released on bail bond or bond to appear in Court 779
CHAPTER XV
OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY, CONVENIENCE, DECENCY AND MORALS
270. Public nuisance 781
271. Negligent act likely to spread infection of disease dangerous to life 786
272. Malignant act likely to spread infection of disease dangerous to life 787
273. Disobedience to quarantine rule 788
274. Adulteration of food or drink intended for sale 789
275. Sale of noxious food or drink 790
276. Adulteration of drugs 792
277. Sale of adulterated drugs 793
278. Sale of drug as a different drug or preparation 794
279. Fouling water of public spring or reservoir 794
280. Making atmosphere noxious to health 796
281. Rash driving or riding on a public way 797
282. Rash navigation of vessel 801
283. Exhibition of false light, mark or buoy 802
284. Conveying person by water for hire in unsafe or overloaded vessel 803
285. Danger or obstruction in public way or line of navigation 804
286. Negligent conduct with respect to poisonous substance 806
287. Negligent conduct with respect to fire or combustible matter 806
288. Negligent conduct with respect to explosive substance 808
289. Negligent conduct with respect to machinery 809
290. Negligent conduct with respect to pulling down, repairing or constructing buildings, etc. 810
291. Negligent conduct with respect to animal 812
292. Punishment for public nuisance in cases not otherwise provided for 813
SECTION
293. Continuance of nuisance after injunction to discontinue 814
294. Sale, etc., of obscene books, etc. 815
295. Sale, etc., of obscene objects to child 826
296. Obscene acts and songs 827
297. Keeping lottery office 828
CHAPTER XVI OF OFFENCES RELATING TO RELIGION
298. Injuring or defiling place of worship with intent to insult religion of any class 833
299. Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs 835
300. Disturbing religious assembly 838
301. Trespassing on burial places, etc. 839
302. Uttering words, etc., with deliberate intent to wound religious feelings of any person 841
CHAPTER XVII OF OFFENCES AGAINST PROPERTY Of theft
303. Theft 844
304. Snatching 864
305. Theft in a dwelling house, or means of transportation or place of worship, etc. 865
306. Theft by clerk or servant of property in possession of master 868
307. Theft after preparation made for causing death, hurt or restraint in order to committing of theft 869
Of extortion
308. Extortion 871
Of robbery and dacoity
309. Robbery 878
310. Dacoity 883
311. Robbery, or dacoity, with attempt to cause death or grievous hurt 892
312. Attempt to commit robbery or dacoity when armed with deadly weapon 896
313. Punishment for belonging to gang of robbers, etc. 897
Of criminal misappropriation of property
314. Dishonest misappropriation of property 898
315. Dishonest misappropriation of property possessed by deceased person at the time of his death 905
Of criminal breach of trust
316. Criminal breach of trust 907
Of receiving stolen property
317. Stolen property 936
Of cheating
318. Cheating 944
319. Cheating by personation 959
Of fraudulent deeds and dispositions of property
320. Dishonest or fraudulent removal or concealment of property to prevent distribution among creditors 961
321. Dishonestly or fraudulently preventing debt being available for creditors 962
322. Dishonest or fraudulent execution of deed of transfer containing false statement of consideration 963
323. Dishonest or fraudulent removal or concealment of property 965
Of mischief
324. Mischief 966
325. Mischief by killing or maiming animal 973
326. Mischief by injury, inundation, fire or explosive substance, etc. 974
327. Mischief with intent to destroy or make unsafe a rail, aircraft, decked vessel or one of twenty tons burden 981
328. Punishment for intentionally running vessel aground or ashore with intent to commit theft, etc. 983
SECTION
Of criminal trespass
329. Criminal trespass and house-trespass 983
330. House-trespass and house-breaking 997
331. Punishment for house-trespass or house-breaking 1001
332. House-trespass in order to commit offence 1002
333. House-trespass after preparation for hurt, assault or wrongful restraint 1004
334. Dishonestly breaking open receptacle containing property 1005
CHAPTER XVIII
OF OFFENCES RELATING TO DOCUMENTS AND TO PROPERTY MARKS
335. Making a false document 1007
336. Forgery 1014
337. Forgery of record of Court or of public register, etc. 1019
338. Forgery of valuable security, will, etc. 1021
339. Having possession of document described in section 337 or section 338, knowing it to be forged and intending to use it as genuine 1023
340. Forged document or electronic record and using it as genuine 1025
341. Making or possessing counterfeit seal, etc., with intent to commit forgery punishable under section 338 1027
342. Counterfeiting device or mark used for authenticating documents described in section 338, or possessing counterfeit marked material 1028
343. Fraudulent cancellation, destruction, etc., of will, authority to adopt, or valuable security 1029
344. Falsification of accounts 1031
Of property marks
345. Property mark 1032
346. Tampering with property mark with intent to cause injury 1034
347. Counterfeiting a property mark 1034
348. Making or possession of any instrument for counterfeiting a property mark 1035
349. Selling goods marked with a counterfeit property mark 1036
350. Making a false mark upon any receptacle containing goods 1037
SECTION
CHAPTER XIX OF CRIMINAL INTIMIDATION, INSULT, ANNOYANCE, DEFAMATION, ETC.
351. Criminal intimidation 1039
352. Intentional insult with intent to provoke breach of peace 1043
353. Statements conducing to public mischief 1046
354. Act caused by inducing person to believe that he will be rendered an object of Divine displeasure 1050
355. Misconduct in public by a drunken person 1051
Of defamation
356. Defamation 1052
Of breach of contract to attend on and supply wants of helpless person
357. Breach of contract to attend on and supply wants of helpless person 1078
CHAPTER XX REPEAL AND SAVINGS
358. Repeal and savings 1081
Rape.
CHAPTER V OF OFFENCES AGAINST WOMAN AND CHILD
Of sexual offences
63. A man is said to commit “rape” if he—
(a) 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
(
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
(
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 or makes her to do so with him or any other person; or
(d) 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:—
(i) against her will;
(ii) without her consent;
(iii) 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;
(iv) 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;
(v) 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;
(vi) with or without her consent, when she is under eighteen years of age;
(vii) 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:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
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 eighteen years of age, is not rape.
Corresponding Provision : Section 375 of IPC, 1860
COMMENTS
Introduction
The term rape originates in the Latin term rapere (supine stem raptum), that translates as “to snatch, to grab, to carry off”1. The offence of rape in its simplest term is the establishment of physical intimacy with a woman, without her consent, by force, fear or fraud. It is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. A woman who is raped suffers not only a physical injury but a deep sense of some deathless shame. Even though time eventually heals the physical scars, but the mental scars never go2. Rape was recognized as a crime under Section 375 of the Indian Penal Code in the year 1860, amended in the year 1983, 2013, 2018 and now replaced by Section 63 of the BNS.
Sexual violence, apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a woman. It is a serious blow to her supreme honour and offends her self-esteem and dignity as well. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity.3
1. Keith Burgess-Jackson, A Most Detestable Crime: New Philosophical Essays on Rape, Oxford University Press, New York, 1999, p.16.
2. Bhupinder Sharma v. State of Himachal Pradesh 2003 Supp (4) SCR 792: (2003) 8 SCC 551.
3. State of Punjab v. Ramdev Singh AIR 2004 SC 1290.
S. 63
BHARATIYA NYAYA SANHITA, 2023
270
Rape is not only a crime against a woman, but also a crime against society - Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys, as noted by this Court in Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty4, the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim’s most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the ‘Constitution’).
The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely.5
Definition of offence of “rape”
A man is said to commit “rape” if he does any of the four acts under the circumstances falling under any of the seven specified descriptions
A man is said to commit “rape” if he does any of the following four acts—
Four Acts
1 Penetration
(a) 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 Insertion of any object
(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
3 Manipulates any part of the body of a woman
(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 or makes her to do so with him or any other person; or
4 Applies his mouth
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,
Narrow interpretation of Sexual Intercourse in Sakshi v. Union6 changed in 2013
Before 2013, the court refused to interpret sexual intercourse to include all sorts of penetrative violations of the female anatomy and observed that, “By a process of judicial interpretation the provisions of section 375, IPC cannot be so altered so as to include all forms of penetration such as penile/vaginal penetration, penile/ oral penetration, penile/anal penetration, finger/vagina and finger/anal penetration and object/vaginal penetration within its ambit. Before 2013, Section 375, used the expression “sexual intercourse” but the said expression was not defined. The dictionary meaning of the word “sexual intercourse” is heterosexual intercourse
4. AIR 1996 SC 922.
5. State of Punjab v. Ramdev Singh AIR 2004 SC 1290 para 1.
6. AIR 2004 SC 3566 paras 18 to 20.
CH. V : OF OFFENCES AGAINST WOMAN AND CHILD S. 63
involving penetration of the vagina by the penis. Prosecution of an accused for an offence under section 376, IPC on radically enlarged meaning of section 375, IPC may violate the guarantee enshrined in Article 20(1) of the Constitution.”
However, in 2013 the definition of ‘Rape’ was enlarged by the Criminal Laws Amendment Act, 2013, and as per the amended definition— Rape can be committed by a man against a woman. The term ‘person’ under clause ‘ a’ to ‘d’ of Section 63 expands the scope of the term ‘Rape’ to include all kinds of violations of a female body whether done by a man himself and also in cases where the man uses any other man, woman or transgender as an agent for the purposes of carrying out any of the acts mentioned under Clause ‘a’ to ‘d’ of Section 63. Following the 2013 amendments, rape is no longer restricted to penile-vaginal penetration. Thus, penetration though essential to constitute the offence of rape need not necessarily be vaginal. It may be the penetration of any orifice of the female anatomy. Digital Rape i.e. penetration of the vulva, vagina, or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent would also amount to rape. After the amendments in 2013, insertion of any body part or object into the female’s cavity has been recognized as rape. Also, under clause ‘d’ application of mouth also amounts to rape.7 Thus clause ‘d’ constitutes a separate category of non-penetrative sexual act.
Man for the purposes of this section is a male human being of any age8
Section 63, Explanation 1.—For the purposes of this section, “vagina” shall also include labia majora.
The extent of penetration is immaterial - In Halsbury’s Statutes of England and Wales (Fourth Edition) Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It is violation with violence of the private person of a woman, an outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order.9 The non-rupture of hymen is not sufficient to dislodge the theory of rape.10 To constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is, therefore, quite possible to commit legally the offence of rape without producing any injury to the genital or leaving any seminal stains.11 Thus, the Supreme Court has accordingly held that even the slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial.12
7. Section 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.
8. Section 2(19) BNS, 1860.
9. Bhupinder Sharma v. State of Himachal Pradesh 2003 Supp (4) SCR 792: (2003) 8 SCC 551.
10. Parminder alias Ladka Pola v. State of Delhi, Criminal Appeal No. 133 of 2006 decided on January 16, 2014.
11. Modi in Medical Jurisprudence and Toxicology (Twenty Second Edition at page 495).
12. Wahid Khan v. State of Madhya Pradesh [(2010) 2 SCC 9].
For conviction under Section 63, rape is a question of law meaning that it is not just the conducting of any of the acts mentioned in the four clauses of Section 63, it is to be seen that the acts should have been done under circumstances falling under any of the seven descriptions specified under section 63.
Sine qua non of offence of rape is penetration, and not ejaculation - The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. Definition of “rape” as contained in section 375, I.P.C. refers to “sexual intercourse” and the Explanation appended to the section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Intercourse means sexual connection.13
Partial penetration of penis without semen emission, may constitute rape -To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376, IPC (Section 64 BNS).14
Rape is constituted when sexual acts enumerated above fall under any of the following Seven Circumstances
(i) against her will.
(ii) without her consent.
(iii) 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.
(iv) 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.
(v) with her consent when, at the time of giving such consent, by reason of mental illness 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.
(vi) with or without her consent, when she is under eighteen years of age.
(vii) when she is unable to communicate consent.
Against the will
Rape against the woman’s will imply that it was committed despite stiff resistance and opposition from the woman. Mere passive or helpless surrender of the body and its resignation to the other’s lust induced by threats or fear cannot be equated
13. Koppula Venkat Rao v. State of A.P. 2004 Cri LJ 1804 (SC): AIR 2004 SC 1874: (2004) 2 Crimes 306 (SC): (2004) 3 JT 328: (2024) 3 SCC 602 para 12.
14. Aman Kumar v. State of Haryana AIR 2004 SC 1497, para 7.
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.15 In Gagan Bihari Samal and Anr. v. State of Orissa16 the court held that, “it is clearly evident in the instant case, that the victim girl protested and struggled while she was subjected to sexual assault forcibly by the accused persons and this clearly evinces absence of consent on her part in such sexual intercourse”.
“Will is defined as wish, desire, pleasure, inclination, choice, the faculty of conscious, and especially of deliberate, action. It is purely and solely a mental process to be ascertained, in a prosecution for rape, by what the prosecuting witness may have said or done. It being a mental process there is no other manner by which her will can be ascertained, and it must be left to the jury to determine that will by her acts and statements, as disclosed by the evidence. It is but natural, therefore, that in charging the jury upon the subject of rape, or assault with intent to commit rape, the courts should have almost universally, and, in many cases, exclusively, discussed “consent” and resistance. There can be no better evidence of willingness is a condition or state of mind no better evidence of unwillingness than resistance. No lexicographer recognizes “consent” as a synonym of willingness, and it is apparent that they are not synonymous. It is equally apparent, on the other hand, that the true relation between the words is that willingness is a condition or state of mind and “consent” one of the evidences of that condition. Like-wise resistance is not a synonym of unwillingness, though it is an evidence thereof. In all cases, therefore, where the prosecuting witness has an intelligent will, the court should charge upon the elements of “consent” and resistance as being proper elements from which the jury may infer either a favourable or an opposing will. It must, however, be recognized in all cases that the real test is whether the assault was committed against the will of the prosecuting witness.”17
Expressions ‘against her will’ and ‘without consent’ have different connotation -The expressions ‘against her will’ and ‘without her consent’ may overlap sometimes but surely the two expressions in clause First and clause Secondly have different connotation and dimension. The expression ‘against her will’ would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition. On the other hand, the expression ‘without her consent’ would comprehend an act of reason accompanied by deliberation.18
Without her consent
Concept of consent - In Jowitt’s Dictionary of English Law the word ‘consent’ has been explained as an act of reason accompanied with deliberation, the mind weighing, as in a balance, the good or evil on either side. It is further stated that consent supposes three things--a physical power, a mental power, and a free and serious use of them and if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise, or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind.19
“Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not
15. Tukaram v. State of Maharashtra AIR 1979 SC 185 at p. 817.
16. 1991 SCR (2) 839, 1991 SCC (3) 562.
17. State v. Schwab, 143 N.E. 29.
18. State of U.P. v. Chhoteylal AIR 2011 SC 697 para 13.
19. (Second Edition), Volume 1 (1977) at page 422.
only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.”20
“Consent,” for the purposes of defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent.21 “Consenting” as used in the law of rape means consent of the will and submission under the influence of fear or terror cannot amount to real consent.22 “In order to constitute “rape”, there need not be resistance to the utmost, and a woman who is assaulted need not resist to the point of risking being beaten into insensibility, and, if she resists to the point where further resistance would be useless or until her resistance is overcome by force or violence, submission thereafter is not “consent”.23
The question that how is consent to be interpreted was discussed at length in the case of DPP v. Morgan24 (1975, House of Lords). In this case the defendant invited the other three defendant, much younger men to his house and suggested that they have sex with his wife telling them that she was kinky and any apparent resistance on her part would be a mere pretense. Accordingly they did have intercourse with her despite her struggles and protests. She kept screaming until a hand was placed on her mouth. They were subsequently charged with rape and the husband was charged for abetting and aiding rape. The wife deposed that she resisted and did not consent. At trial the three men pleaded that they had honestly believed that Mrs. Morgan had consented to sexual intercourse.
The trial judge directed the jury that the defendants would not be guilty of rape if they honestly believed that the woman was consenting and that belief in consent was reasonably held. But the jury nonetheless convicted all four and they appealed. In appeal, the House of Lords found honest, mistaken belief in the victim’s consent need not be reasonable to rebut a charge of rape. While the defendants won their legal argument, their convictions were upheld and the judges found that no reasonable jury would have ever acquitted the defendants even had they been correctly directed by the trial judge as to the law.
The accused were finally convicted, but two judges dissented and held that a honest and reasonable belief of the woman’s consent would negative the mens rea and make the accused innocent. They further observed that—
When a defendant had sexual intercourse with a woman without her consent, genuinely believing nevertheless that she did consent, he was not to be convicted of rape.
A man, who has intercourse with a woman believing on inadequate grounds that she is consenting to it, does not commit rape in ordinary parlance or in law.
20. State of HP v. Mango Ram, AIR 2000 SC 2798, 2000 AIR SCW 3095, 2001 CRI LJ (NOC) 31, 2000 (6) SCALE 89.
21. People v. Pelvino, 214 N.Y.S. 577.
22. Hallmark v. State, 22 Okl. Cr. 422.
23. People v. McIlvain 55 Cal. App. 2d.
24. 2 All. E.R. 347 (H.L. 1975).
In rape the prohibited act is intercourse without the consent of the victim and the mental element lies in the Intention to commit the act without caring whether the victim consents or not.
A failure on part of prosecution, to prove this element involves an acquittal because an essential element is lacking.
Thus, according to law, presence of mens rea is established only by determining that the man was aware of the woman not consenting to the act. Where he reasonably believes that the woman consented, he lacks the mens rea required to constitute rape. The judges observed that the defendant must possess a reasonable belief to assert mistake of fact as negating the intent required for the crime.
Consent of the woman should have been obtained prior to the act- It is no defence that the woman consented after the act.25 The consent of a woman to sexual intercourse obtained by putting her in fear of death or of hurt is no defence to an accused person for an offence under this section. As a general proposition it is not true either in fact or in law that consent obtained by fraud is no consent at all.26
Presumption as to consent.—Consent or absence of it is generally gathered from the attendant circumstances. The circumstances that the girl was taken to the forest and kept throughout the night strongly suggests that the prosecutrix was not a consenting party.27 A sleeping person can never consent. Where, therefore, a man had connection with a woman while she was asleep, he was held to have committed rape.28
Consent for purpose of section 63(ii) requires voluntary participation after exercise of intelligence based on knowledge of act - Consent for the purpose of section 63(ii) requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between the resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.29 Unfortunately IPC, 1860 or even BNS, 2023 does not define the term ‘consent’ in very clear terms. It just mentions what cannot be regarded as consent30. A person, who is drugged, intoxicated or under the influence of anesthesia, unsoundness of
25. 1 Hawk PC c 16, section 7, p 122.
26. State v. Mange Ram AIR 2000 SC 2798: 2000 SCC (Cri) 1331: (2000) 7 SCC 224: 2000 Cri LJ 4027 (SC): (2000) 9 JT 408: (2000) 3 Crimes 179 (SC); Motiram AIR 1955 Nag 121: 1955 Cri LJ 819 (SC): (1954) Nag 922.
27. Babu 1984 Cri LJ (NOC) 74 (Raj.).
28. Mayers (1872) 12 Cox 311; Young (1878) 14 Cox 114.
29. State of HP v. Mango Ram AIR 2000 SC 2798, 2000 AIR SCW 3095, 2001 CRI LJ (NOC) 31, 2000(6) SCALE 89 para 12.
30. 28. Consent known to be given under fear or misconception.—A consent is not such a consent as is intended by any section of this Sanhita,––
(a) 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
(b) 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
(c) unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.
mind, comma or paralysis is incapable of giving consent to the act. An act done without consent is not necessarily against the will, while an act done against the will is always without consent. A consent obtained by fear, force or fraud of any type is not consent for the purposes of exemption from liability under Section 63.
Clarity of consent
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 - Explanation 2 to Section 63 makes it clear that the consent should be voluntarily given and the participation must be a wilful participation. Consent is certainly “an act of reason, accompanied with deliberation, the mind of weighing, as in a balance, the good and evil on each side”. Consent supposes three things - a physical power, a mental power and a free and serious use of them. These ensure only the avoidance of intimidation, force, undue influence etc. It does not mean that use of these factors shall result in an intelligent, wise and righteous decision. In other words, it should not be a mere act of helpless resignation, non-resistance and passive giving in. In the case of State of Himachal Pradesh v. Mango Ram31 the Supreme Court rightly observed that, “Whether there was consent or not is to be ascertained only on a careful study of all relevant circumstances.”
Section 28 of the BNS provides that consent is presumed to be given only when it is not given under fear of injury or misconception of fact. Thus, a person is presumed to have consented only when the consent was given freely, voluntarily and without the influence of any fear, force or fraud operating on the mind of the victim. To constitute ‘consent’ under Section 63, there must be an intelligent and mature understanding of the nature and consequences of sexual act. If a girl passively submits or does not resist the advances of the accused, because of fear, it cannot be presumed to be consent for the purposes of Section 375. Absence of injuries on the person of the accused or the prosecutrix is not per se sufficient to indicate her consent.32
In a case, girls mostly orphans, staying in the Ashram were raped by the swami who was running the orphanage. Consent of many of the prosecutrix had been obtained by deceitful means that if they had sex with him they would be cured of asthma or that if they had sex with the swami it is service to God or some of the girls had been raped under threat of dire consequences. Swami had dominion/control over the ashram girls and most of them being orphans had no alternative place to go. It was held that such a case clearly falls within the thirdly clause of section 375 (63 BNS), as the consent is obtained by deceitful means or under threat of death or hurt, it is no consent at all and it is without her consent.33
Proviso to Section 63 (Section 375 IPC) clarifies that non-resistance is not to be construed as consent. Bringing out the difference between consent and passive submission, the High Court of Maharashtra said in the historic Mathura Case,
31. JT 2000 (9) SC 408.
32. State of UP v. Padam Singh, 1996 ALHC 169 (All.).
33. Kamalanantha (2005) 5 SCC 194: AIR 2005 SC 2132: 2005 AIR SCW 1836: (2005) 3 Crimes 24 (SC): (2005) 4 JT 170: 2005 SCC (Cri) 1121.
“Mere passive or helpless surrender of the body and its resignation to the 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.”34
Consent on the part of a woman as a defence to an allegation of rape, requires voluntary participation after having fully exercised the choice between resistance and assent.35 Absence of injuries on the aggressor or the aggressed may not, by itself, clinch the issue as to whether it was a case, of consent or no consent and this circumstance is to be judged in the light of the other evidence in coming to a conclusion. The consent given by the victim must also be voluntary and a mere act of helpless resignation in the face of inevitable compulsion when the volitional faculty is crowded by fear cannot be deemed to be consent within the meaning of (Section 63 BNS) Section 375 of the Code.36 Similarly when her consent is obtained by putting her or any person in whom she is interested in fear of death or grievous hurt, such consent would be no defence.37
In cases where the woman consents because she believes the man to be her lawfully wedded husband such as where the man either conceals the fact of his being already married to some other woman from her and undergoes marriage ceremonies with her thereby making the woman believe that she is lawfully wedded to him; or in cases where the man undergoes fake marriage ceremonies and dupes the woman into believing them to be correct, or where the woman believes that he is some other man to whom she is lawfully wedded, the consent is no defence. In these cases the woman agrees to cohabit with the man on the mistaken belief that she is lawfully wedded to him.
Also in cases where the woman is unable to understand the nature and consequences of that to which she consents by reason of unsoundness of mind or intoxication, resulting from administration of any stupefying or unwholesome substance, her consent is deemed as no consent. In cases where the woman is unable to move, in comma or otherwise unable to resist or express herself i.e. When she is unable to communicate consent the accused will be held guilty of rape if he commits any of the acts mentioned under Section 63 with her.38
Sexual intercourse with a woman suffering unsoundness of mind - Consent given by a woman of unsound mind is of no avail. Where, therefore, a man had carnal knowledge of a girl of imbecile mind, and the jury found that it was without her consent, she being incapable of giving consent from defect of understanding, it was held that this amounted to rape.39 In such a case the plea of consent is too shallow to even need detailed analysis or consideration. A mentally challenged girl cannot legally give a consent which would necessarily involve understanding of the effect of such consent. It has to be conscious and voluntary act. There is a gulf of difference
34. Tukaram v. State of Maharashtra AIR 1979 SC 185.
35. State of Orissa v. Khudiram Sahu, (1986) 2 Crimes 639 at p. 640.
36. State of Orissa v. Khudiram Sahu, (1986) 2 Crimes 639 at p. 640.
37. Clause thirdly of Section 375 IPC, 1860.
38. Section 63(4).
39. Fletcher (1859) 8 Cox 131; Pressy (1867) 10 Cox 635; Khoja Ram 2006 Cri LJ 2093 (HP).
S. 63
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between consent and submission. Every consent involves a submission but the converse does not follow, and mere act of submission does not involve consent. An act of helpless resignation in the face of inevitable compulsion, quiescence, nonresistance 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.40 Where the accused made a woman quite drunk, and whilst she was insensible violated her person, it was held that this offence was committed.41
In case the victim is a deaf and dumb minor girl and the medical examination shows that she was subjected to forceful sexual assault and she identified the accused by pointing out to the accused in course of her examination in-chief, corroborated by the evidence of other witness who first noticed the accused taking her to a cattle shed at the time of incident, conviction of accused was held as sustainable.42
Non-resistance under misconception of facts does not constitute consent - Mere non-resistance to intercourse in consequence of misapprehension will not amount to consent. In a case, where a medical man, to whom a girl of fourteen years of age was sent for professional advice, had criminal connection with her, she making no resistance from a bona fide belief that he was treating her medically, he could be convicted for rape.43 Similarly in Queen v. Flattery44 the accused professed to give medical advice for money, and a girl of nineteen consulted him with respect to illness from which she was suffering, and he advised that a surgical operation should be performed and, under pretence of performing it, had carnal intercourse with her, it was held that he was guilty of rape. In another case the accused, who was engaged to give lessons in singing and voice production to a girl of sixteen years of age had sexual intercourse with her under the pretence that her breathing was not quite right and he had to perform an operation to enable her to produce her voice properly. The girl submitted to what was done under the belief, wilfully and fraudulently induced by the accused that she was being medically and surgically treated by the accused and not with any intention that he should have sexual intercourse with her. It was held that the accused was guilty of rape45. In Uday v. State of Karnataka46 the Supreme Court has made it clear that, “In the ultimate analysis, the test laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its
40. Tulshidas Kanolkar (2003) 8 SCC 590.
41. Camplin (1845) 1 Cox 220; Ryan (1846) 2 Cox 115.
42. Laxman Narayan Jadhav 2006 Cri LJ (NOC) 209 (Bom.); Devalla Raghuvulu 2005 Cri LJ 1041 (AP).
43. Reg. v. William, (a) (1850) Crl. Law Cases 220 (Vol. IV).
44. (1877) 2 QBD 410.
45. The King v. Williams, (1923)1 KB 340.
46. AIR 2003 SC 1639.
own peculiar facts which may have a bearing on the question whether the consent was voluntary or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.”
Mere meek submission is not consent - An act of helplessness on the face of the inevitable compulsions would not be a consent in law and it is not necessary that there should be actual use of force but a threat or use of force would be sufficient to constitute an offence of rape.47 In a case where the prosecutrix at the time of incident was less than 18 years of age and after being kidnapped by two adult males, one of whom wielded fire-arm and threatened her and she was taken away from her village. Absence of alarm by her at public place cannot lead to the inference that she had willingly accompanied the accused persons. The circumstances made her submissive victim and that does not mean that she was inclined and willing to intercourse with the accused.48 It is not easy to find a dividing line between submission and consent. Yet, the evidence has to be carefully scanned.49
Statutory Rape: Section 63(6)
Consent of a girl below 18 years of age is immaterial and sexual intercourse with a girl below eighteen years of age would necessarily amount to rape even if she had consented to the same.
Earlier statutory age for consent was 16. In 2013 it was raised to 18, in order to bring it in conformity with POCSO, 2012.
Consent of minor is no defence - Where the evidence clearly established that victim was less than 16 years of age her consent would be of no consequence.50 The consent of prosecutrix is no defence if the victim has been proved to be under sixteen years of age.51 Section 375 covers case of a prosecutrix who had married accused without knowledge of his first marriage. The accused-husband would be guilty of rape. The delay in lodging complaint by the prosecurtrix cannot in any event wash away the offence.52
If the girl is less than sixteen years of age her consent is immaterial.53 If once it was proved that the girl was below sixteen years of age, the question of consent did not arise and the fact that no injury was detected on the private parts of the girl or that
47. Satpal Singh 2010 Cri LJ 4283 (4289) (SC): (2010) 8 SCC 714.
48. State v. Chhotey Lal AIR 2011 SC 697: (2011) 2 SCC 550.
49. Deelip Singh (2005) 1 SCC 88: AIR 2005 SC 203: 2004 AIR SCW 6479: (2004) 4 Crimes 371 (SC): (2004) 9 JT 469.
50. Iqbal AIR 2008 SC 288: (2007) 12 SCC 724: 2008 Cri LJ 436 (SC).
51. State v. N K AIR 2000 SC 1812: 2000 Cri LJ 2205 (SC): (2000) 5 SCC 30: 2000 SCC (Cri) 898: 2000 AIR SCW 1407: (2000) 3 JT 643: (2000) 2 Crimes 84 (SC); Kamalanantha (2005) 5 SCC 194: AIR 2005 SC 2132: 2005 AIR SCW 1836: (2005) 3 Crimes 24 (SC): (2005) 4 JT 170.
52. Bhupinder Singh v. Union Territory of Chandigarh 2008 Cri LJ 3546 (SC).
53. Gurcharan Singh AIR 1972 SC 2661: 1973 Cri LJ 179 (SC): 1972 SCC (Cri) 793: (1972) 2 SCC 749; Yeshwant Rao AIR 1992 SC 1683: 1992 Cri LJ 2779 (SC): 1993 SCC (Cri) 283; Sudhamay Nath 1999 Cri LJ 4482 (Cal.).
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she was found to have been used to sexual intercourse also become irrelevant.54 Where the certificate of the radiologist, entry in the admission register of the school in which she was a student and a certified copy of the entry in the birth register showed that the prosecutrix was about fifteen years of age at the time of the occurrence of the case, the accused would squarely fall under clause fifthly of sections 3 & 5 (vi of Section 63 BNS) and he would be punishable for the rape irrespective of the consent of the girl.55 Where the prosecutrix, a girl of about fourteen years of age, at the time of occurrence, was allowed by her father to be taken away by the relatives of his elder daughter’s husband to look after her elder sister for some time, and later on he learnt that the prosecutrix had been ‘married’ to the appellant. On hearing the same, he lodged a report with the police alleging that the accused persons had kidnapped his daughter and forced her to have illicit intercourse with the appellant and when the girl was recovered from the house of the appellant, she stated that she had been forcibly raped by the appellant for several nights in the appellant’s house, it was held that the accused was guilty of rape.56 The only conclusive piece of evidence of a girl’s age may be the birth certificate but where such a document is not available the Court or the jury has to base its conclusions upon all the facts and circumstances disclosed on examining all the physical features of the person whose age is in question, in conjunction with such testimony as may be available.57 Where the evidence on record indicated some discrepancy as regards age of the victim and ossification or other pathological tests were not carried out, the finding recorded by the Sessions Court on the issue relying on the statement of the mother of the victim was not interfered with by the Supreme Court.58
Presumption as to absence of consent in certain prosecution for rape [Section 120 of Bharatiya Sakshya Adhiniyam, 2023]
In a prosecution for rape under sub-section (2) of section 64 of the Bharatiya Nyaya Sanhita, 2023, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent.
In this section, “sexual intercourse” shall mean any of the acts mentioned in section 63 of the Bharatiya Nyaya Sanhita, 2023.
54. Harpal Singh AIR 1981 SC 361: 1981 Cri LJ 1 (SC): 1981 SCC (Cri) 208: (1981) 1 SCC 560.
55. Harpal Singh AIR 1981 SC 361: 1981 Cri LJ 1 (SC): 1981 SCC (Cri) 208: (1981) 1 SCC 560; Ramachandran M 1996 Cri LJ 3566 (Ker.); State v. Inayathusen Mahmadmiya 1996 Cri LJ 3225 (Guj.).
56. Bishnudayal AIR 1981 SC 39: 1980 Cri LJ 1297 (SC): 1981 SCC (Cri) 283.
57. Sidheswar Ganguly AIR 1958 SC 143: 1958 Cri LJ 273 (SC).
58. Kamal Kishore AIR 2000 SC 1920: 2000 Cri LJ 2292 (SC): (2000) 4 SCC 502: 2000 SCC (Cri) 833: (2000) 5 JT 202: (2000) 2 Crimes 285 (SC).
Presumption as to absence of Consent - Alongside the amendments related to Rape in IPC, Section 114A59 was inserted in the Indian Evidence Act in the year 1983 and further amended in 2013 to make prosecutions in rape cases easier and less complicated. This corresponds to Section 120 in the BSA, 2023. In rape trials under section 64 sub-section (2) of BNS there is a presumption as to the absence of consent on behalf of the woman and the onus is on defence to prove otherwise. Thus, if the female says that she did not consent to the act of sexual intercourse, her statement will be presumed to be correct and taken as conclusive evidence. The burden would lie on the accused to rebut the same and prove that the intercourse was done with the consent of the woman.
The proviso to Section 149 of the BSA provides that in prosecutions for rape or for attempt to commit rape, where the question of consent is an issue, the court shall not permit anyone to adduce evidence or to put questions in the cross-examination of the victim pertaining to the general immoral character, or previous sexual experience, of the victim with any person for proving the consent or the quality of consent. Thus evidence of character or previous sexual experience is irrelevant in prosecutions for rape. Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of easy virtues or a woman of loose moral character can be drawn. Even such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated60. Even if the victim of rape was previously accustomed to sexual intercourse, it cannot be the determinative question. On the contrary, the question still remains as to whether the accused committed rape on the victim on the occasion complained of. Even if the victim had lost her virginity earlier, it can certainly not give a license to any person to rape her. Whether the victim is of a promiscuous character is totally an irrelevant issue altogether in a case of rape. Even a woman of easy virtue has a right to refuse to submit herself to sexual intercourse to anyone and everyone, because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone.
59. Section 114A Indian Evidence Act, 1872: Presumption as to Absence of Consent in Certain Prosecutions for Rape -- In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (‘), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court. That she did not consent, the court shall presume that she did not consent.
Explanation.—In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of section 375
60. State of Maharashtra v. Madhukar Narayan Mardikar, AIR 1991 SC 207. Also see State of Punjab v. Gurmit Singh AIR 1996 SC 1393; and State of U.P. v. Pappu @ Yunus AIR 2005 SC 1248.
