The Rape Victim in India: Section 375 of IPC
Author:- Nainsi Bohare
Keywords:- Rape victim, women, crime, fundamental rights, Section 375, Indian Penal Code, consent, will, society, marriage
Introduction
Any kind of violation against women is a violation of fundamental rights i.e. Right to life and Personal Liberty in Article 21 of the Indian Constitution. The state must protect women from any kind of offense against women and also create an environment that is free from any crime and provide equal opportunity to women in every field. The state should also ensure that women should participate in the opportunities provided by the state without any fear. There are various crimes which are against the women like domestic violence, dowry death, etc.
Rape is also a crime against women. It is one of the most heinous crimes. India registered 31,677 rape cases in 2021 and lodges 86 rapes daily. And many cases are not being registered just because of the fear of society.
Rape is a crime that does not only affect women physically but also psychologically and mentally and leaves its scars forever in the life of the victim.
Offenses related to sex have existed since time immemorial. Though we have a lot of provisions related to rape and the rights of rape victims still there are an increasing number of cases in society. The reason is the mentality of the society, lack of knowledge, and also many people think that they will dominate the women. This can be prevented when the women know about their rights and take action against the heinous act which happened to them.
RAPE
Rape is defined in SECTION 375 OF INDIAN PENAL CODE, 1860.
According to the section 375:–
A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following 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 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, because 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.
Explanation to Section 375- Penetration is sufficient to constitute the sexual intercourse necessary to the offense of rape.
Exception- Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.
In other words
In simple words rape means, sexual intercourse by a man with a woman without her consent constitutes rape. Rape also means “the ravishing or violation of a woman.” The word rape is derived from the Latin word ‘rapio’ which means to seize. Thus the literal meaning of rape is a forcible seizure.
Rape is not a crime against an individual but it is the crime against society.
In the case Rafiq v. State of UP where it was said that the murderer kills the body of a victim but rape kills the soul of the victim. Thus from this, we can consider rape as the more serious offense against humankind than murder.
Section 375 plays an important role in bringing justice to the victim suffering from the pain of rape.
CONSENT
Consent plays a very important role in rape. For the definition of rape, consent is the essential ingredient. There is no appropriate definition of consent is given under any provision or law. Consent can be defined either through laws or cases. The definition of consent varies from state to state. Hence, it depends upon the rules and cases of the particular state.
EXPLANATION 2 OF SECTION 375 OF IPC
The Explanation to Section 375, describes consent as “an unequivocal communicates a willingness to engage in the specific sexual acts through words, gestures, or any other means of verbal or nonverbal communication.
Some points indicated the capacity to consent:
- AGE: The major factor for consent is age. If the consent is given by the major person i.e., if the person is above 18 years of age, then their consent is valid. But if the consent is given by under 18 years of age person then the consent would not be considered and it commences rape.
- INTOXICATION: If the consent is given by an intoxicated person, then the consent would not be considered valid because the person is not in their senses.
- MENTALLY DISABLE: If the person is mentally disabled and did not able to make decisions then their consent is also considered invalid.
THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (POSCO) ACT was introduced in 2012. This act includes a detailed definition of sexual harassment of children. The act describes the various kinds of penetrative and non-penetrative sexual assaults, as well as their penalties
The most famous case Delhi Gang Rape case which is also known as the Nirbhaya Rape Case is the case that defines consent as the unequivocal voluntary agreement to participate in a sexual offense.
FACTORS RESPONSIBLE FOR THE OFFENCE OF RAPE
- The mindset of the people: This is the ancient problem of society, where a man thinks that women are inferior. They can rule over her mind, soul, and body. This cheap mentality leads to an increase in the offense of rape.
- Awareness among women: This is also the main issue, women don’t know their rights. Women need to be aware of their rights so that they can come forward and talk about the molestation and any offense that happens against them.
- Legal laws: Even though we have a lot of provisions in our law but still there are some loopholes in our system. Marital rape still does not recognize as rape under section 375 of IPC.
RIGHTS OF THE RAPE VICTIM
According to the provision of rights of rape victims, there are total 6 rights given to rape victims they are-
- Right to zero FIR
- Free medical treatment in any private hospital
- No two-finger test during the medical examination
- Harassment-free and time-bound police investigation
- Trial with full dignity, speedy and protection
- Right to compensation
RIGHT TO ZERO FIR
A zero FIR is an FIR that can be filed by victims in any police station irrespective of their jurisdiction. If the offense of rape happened in district A and then the victim moves to the other place B then, she can file FIR in district B also for the offense of rape.
The FIR after being registered is transferred to the police station which has its jurisdiction and then the investigation begins.
In the case of LALI TA KUMARI V. GOVERNMENT OF UP, it was clearly stated by the Supreme Court that, a person can file FIR in any police station irrespective of its jurisdiction under section 154 of The Criminal Procedure Code, 1973. And if any police officer denies registering FIR then he is liable under Section 166 of the Indian Penal Code, 1860.
RIGHT TO FREE MEDICAL TREATMENT IN ANY PRIVATE HOSPITAL
According to section 357C of CRPC, the government hospitals or private hospitals shall provide free medical treatment to the rape victim. They should immediately provide first aid to the rape victim. If they demand fees for the treatment of rape victims then they are punishable under section 166B of the Indian Penal Code, 1860, with 1 year of imprisonment or fine, or both.
NO TWO-FINGER TEST DURING MEDICAL EXAMINATION
No doctor shall possess two-finger tests during the medical examination of the rape victim. As per section 164A of CRPC, this section tells how the reports are made and what is included in the reports.
Supreme Court in the cases of LILLU ALIAS RAJESH AND ANOTHER V. STATE OF HARAYANA stated that two-finger tests violate the privacy, integrity, and dignity of the rape victim. Hence two-finger test is illegal. And only lady doctors shall examine the rape victim.
RIGHT TO HARASSMENT-FREE AND TIME-BOUND INVESTIGATION
The statement must be recorded by a female police officer or any other particular officer that will come on time decided by the victim and should fix the place where the victim is comfortable. This is given in Section 154 of Criminal Procedure Code.
The female police officer shall record the statement in the presence of the victim’s parents or guardian. The magistrate can also record the statement according to section 164(5-A) of CRPC.
If the rape victim is mentally unstable or of unsound mind, then Analyzer Educator Social Interpretation shall be present at that time to understand the victim.
TRIAL WITH FULL DIGNITY, SPEEDY AND PROTECTION
The statement given by the victim in court shall be practicable. No further questions would be asked to the rape victim which questions her character. According to section 53A of The Indian Evidence Act, questions related to the victim’s past sex history asked during inquiry are irrelevant.
Inquiry and trial of the rape victim shall be held in front of the camera, according to section 327(2) of CRPC.
The information given by the rape victim to the Magistrate shall be confidential, according to section 327(3) of CRPC.
The investigation of the rape shall be completed within 2 months from the date on which the FIR was filed by the victim, according to section 173(1A) of CRPC. This was stated in the case STATE OF KERELA V. RASHEED.
The court must protect the victim and the witness so that no one can threaten them. And it is also the responsibility of the police to pick up the victim safely from their home and also to drop off the victim. There are special waiting rooms for the victim and the witness as well.
RIGHT TO COMPENSATION
This provision came in CRPC under section 357A through a case NIPUN SAXENA V. UNION OF INDIA. According to this provision, compensation should be given to the victim. The compensation scheme was introduced in this case on 11-05-2018 by the Supreme Court.
As per the scheme, a minimum of 4 Lakh rupees and a maximum of up to 7 Lakh rupees should be given to the victim as compensation.
In the case of SERINA MONDAL ALIAS PIYADA V. THE STATE OF WEST BENGAL AND ORS, it was held that the compensation is given to the victim as the protection of their fundamental rights.
PUNISHMENT FOR THE OFFENCE OF RAPE
When it comes to the punishment for his heinous offense every punishment seems to be less. SECTION 376 OF INDIAN PENAL CODE, 1860 lays down the punishment for this offense. Earlier the punishment for this offense was 7 years of imprisonment and in some cases life imprisonment. But after the 2012 Nirbhaya gang rape case, the punishment for rape was changed.
The Criminal Law (Amendment) Act of 2013 which was enforced on 2 APRIL, 2013. The punishment for rape increased to 10 years of imprisonment. While in some cases death penalty is also imposed if the victim dies or was left in a vegetative state.
The punishment for gang rape had also increased to 20 years of imprisonment and a maximum of life imprisonment.
CONCLUSION
Rape is a serious offense and giving punishments to the accused cannot decrease the number of rape cases. This type of heinous crime can only be stopped when there are strict laws in our system. The government should focus on the education of the people. Especially teenage people because according to the reports, there are large numbers of teenagers involved in rape cases. Sexual education should be given to teenagers and other people who are not aware of it. Because spreading awareness about this will help decrease this type of crime.
Women should also be aware of their rights. Various laws in our system protect women. But most women don’t know about their rights. The government provided women’s helpline numbers i.e. 1090 and also there are various services provided by the government such as dropping the women at their homes at night.
Hence, there are various services launched by the government for the protection of women. But women should be aware of their rights and these services and must use them when she is needed.
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