Sexual Offences - Section 63-73 deals with sexual offence and its various aspects.
Rape: The word 'rape' is derived from the Latin word 'rapio' which means 'to seize'. Rape means forcible seizure. In Phul Singh v. State of Haryana, AIR 1980 SC 249 Supreme Court held that rape is violation of the private person of a woman. In Bhupinder Singh v. State of Himanchal Pradesh, AIR 2003 SC 4684 Supreme Court held that rape signifies ravishment of a woman against her will or without her consent or with her consent obtained by force, fear or fraud. Section 63 defines 'rape' and Section 64 and 65 prescribes punishment for it. Section 63 provides that that 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.
Supreme Court in State of UP v. Bablunath, (1994) 6 SCC 29 interpreted the expression 'sexual intercourse' and observed that it is not necessary that there should be complete penetration of male organ. Even partial or slightest penetration of male organ is sufficient to constitute 'sexual intercourse'. Intercourse is deemed complete upon proof of penetration only.
Against her will and without her consent
There is difference between 'an act done against the will' and 'act done without consent'. Every act done against the will is always 'without consent' but vice versa is not always correct. All acts done against will are always without consent but all acts done without consent may not be against will.
In State of UP v. Chhote Lal, (2011) 2 SCC 550 observed that the expression against her will would ordinarily mean that the intercourse was done by the man despite resistance and opposition from woman. The expression 'without consent' means an act of reason accompanied by deliberation.
Consent means intelligent, positive concurrence of the 'will' of the woman. Supreme Court in State of Himanchal Pradesh v. Mango Ram, AIR 2000 SC 2798 held that submission of body under fear of terror cannot be construed as consensual sexual act.
Consent for the purpose of Section 63 requires voluntary participation not only after exercise of intelligence base on knowledge but after having fully exercise the choice between resistance and assent. Consent obtained by fraud is not consent.
Supreme Court in Deelip Singh v. State of Bihar, (2005) 1 SCC 88 held that consent given by woman believing that man's promise to marry her would fall within the expression 'without her consent' only if it is established that from the very inception the man never really intended to marry her and the promise was a mere hoax.
Explanation and Exceptions
Section 63 carries two explanations, one proviso and two exceptions. Explanation 1 provides that for the purposes of this section, vagina' shall also include labia majora. Explanation 2 provides that 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.
Proviso appended to Section 63 provides that a woman who does not physically resist to the act of penetration shall not by reason only of that fact, be regarded as consenting to the sexual activity.
Exceptions: Section 63 provides two exceptions.
Exception 1 provides that a medical procedure or intervention shall not constitute rape.
Exception 2 provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape
In Indian Penal Code, in Exception 2 the age limit was fifteen years. However, Supreme Court in Independent Thought v. Union of India, AIR 2017 SC 4904 has read down Exception 2 of Section 375. The Court held that sexual intercourse with wife below the age of 18 years constitute rape. Therefore, after the decision of SC in this case 'fifteen years' in Exception 2 of Section 375 was read as eighteen years. This law laid down by Supreme Court has been applied in Bharatiya Nyaya Sanhita and therefore, in Exception 2 of Section 63 eighteen years is mentioned.
Identity of rape victims
Section 72 and 73 prohibits the disclosure of identity of the victim of rape. Even SC in Nipun Saxena v. Union of India, JT 2018 (12) SC 264 held that the identity of the victim of rape and children who are victims of sexual abuse should be protected so that they are not subject to unnecessary ridicule and harassment.
Evidence of the prosecutrix
Evidence of prosecutrix is a crucial piece of testimony in trial of any rape case. Supreme Court in State of Himanchal Pradesh v. Sanjay Kumar, AIR 2017 SC 835 observed that conviction for an offence of rape can be based on the sole testimony of the prosecutrix, if it is found to be natural, trustworthy and worth being relied on. Further, in Rajesh Patel v. State of Jharkhand, AIR 2013 SC 1497 Supreme Court held that court can rely on the evidence of prosecutrix, even without seeking corroboration if it seems natural.
Punishment for rape
Section 64 provides that whoever commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine. This section is subject to provisions of Section 64(2).
Section 64(2) describes certain situations and if the offence falls in any of such categories then the offender is liable for punishment with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of the person's natural life, and shall also be liable to fine.
Punishment for rape of woman under 16 yeas of age: Section 65(1) provides that whoever, commits rape on a woman under sixteen years of age shall be punished with:-
i. Rigorous imprisonment for a term which shall not be less than twenty years.
ii. It may extend to imprisonment for life, which shall mean imprisonment for the remainder of the person's natural life; and
iii. Shall also be liable to fine.
Punishment for rape of woman under 12 years of age: Section 65(2) provides that whoever, commits rape on a woman under 12 years of age shall be punished with:-
i. Rigorous imprisonment for a term which shall not be less that twenty years;
ii. It may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and
iii. With fine; or
iv. With death
In both Sections 65(1) and Section 65(2) such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim. Any fine imposed under this sub-Section shall be paid to the victim.
Punishment for causing death or resulting in persistent vegetative state of victim: Section 66 provides that whoever, commits an offence punishable under Section 64(1) and 64(2) and in the course of such commission inflicts an injury which
i. Cause the death of the woman; or
ii. Causes the woman to be in a persistent vegetative state,
Shall be punished with rigorous imprisonment for a term which
i. Shall not be less than twenty years;
ii. It may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, or
iii. With death.
Sexual intercourse by husband upon wife during separation [Section 67]
It provides whoever, being :-
a. In a position of authority or in a fiduciary relationship; or
b. A public servant; or
c. Superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force, or a women's or children's institution; or
d. On the managment of a hospital or being on the stuff of a hospital,
abuses such position of fiduciary relationship to
i. Induce; or
ii. Seduce any woman; either
iii. In his custody; or
iv. Under his charge; or
v. Present in the premises to have sexual intercourse with him;
vi. Such sexual intercourse not amounting to the offence of rape;
shall be punished with rigourous imprisonment for a term which shall not be less than five years, but which may extend to ten years,and shall also be liable to fine.
Sexual intercourse by employing deceitful means etc. [Section 69]
Section 69 provides that whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Explanation to Section 69 provides that 'deceitful means' shall include inducement for, or false promise of employment or promotion, or marrying by suppressing identity.
Gang rape [Section 70]
Section 70(1) provides that where a woman is raped by
i. One or more persons constituting a group; or
ii. Acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape; and
shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natual life, and with fine.
Section 70(2) provides punishment for gang rape on woman under eighteen years of age. The punishment in such case shall be imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life,and with fine.
First Proviso to Section 70(2) provides that fine shall be jsut and reasonable to meet the medical expensed and rehabilitation of the victim. Second Proviso to Section 70(2) provides that fine imposed under this Section shall be paid to the victim.
Punishment for repeat offenders [Section 71]
It provides that whoever has been previously convicted of an offence punishable under Section 64, 65, 66, 70 and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person's natural life, or with death.
Guidelines issued by SC to be followed while dealing with sexual crimes.
In Aprana Bhar v. State of MP, (2021) SC issued a set of guidelines to be followed by Courts while dealing with sexual crimes. The Court also suggest that gender sensitization training should be imparted to Judges and public prosecutors. The Court observed that each High Court should formulate a module on judicial sensitivity to sexual offences, to be tested in the Judicial Services Examination. It also directed the Bar Council of India to take steps to include such courses as part of LLB and AIBE syllabus. The Court issued the following guidelines.
a. Bail conditions should not mandate, require or permit contanct between the accused and the victim. Such conditions should seek to protect the complainant from any further harassment by the accused;
b. Where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, or upon apprehension expressed, after calling for reports from the police, the nature of protection shall be separately considered an appropriate order made, in addition to a direction to the accused not to make any contact with the victim;
c. In all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and copy of the bail order made over to him/her within two days;
d. Bail conditions and orders should avoid reflecting stereotypical or patricarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the CrPC [Now BNSS]. In other words, discussion about the dress, behavior, or past "conduct" or "morals" of the prosecutrix, should not enter the verdict granting bail;
e. The courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction;
f. Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix, during the proceedings, or anything said during the arguments. and
g. Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the Court.
Two finger test
In Lillu v. State of Haryana, (2013) 14 SCC 643 Supreme Court held that rape survivors are entitled to legal recourse that does not re-traumatise them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender-based violence. The State is under an obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with their privacy. Thus, the two finger-test and its interpretaion vilates the right of rape survivors to privacy, physical and mental integrity and dignity.
In State of Jharkhand v. Shailendra Kumar Rai @ Pandav Rai, AIR 2022 SC 5393 Supreme Court observed that whether a woman is "habituated to sexual intercourse" or "habitual to sexual intercourse" is irrelevant for the purposes of determining whether the ingredients of Section 375 of the IPC [Section 63 of BNS] are present in a particular case.
Supreme Court in this judgement while reiterating its decision in Lillu v. State of Haryana, (2013) 14 SCC 643 held that the "two finger test" or pre vaginum test must not be conducted as this test has no scientific basis and neither proves nor disproves allegations of rape. It instead re-victimizes and re-traumatizes women who may have been sexually assaulted, and is an affront to their dignity. The Court observed that so-called test is based on the incorrect assumption that a sexually active woman cannot be raped. The Court directed both the Central and State Government to review the curriculum in medical schools with a view to ensuring that the "two finger test" or per vaginum examination is not prescribed as one of the procedures to be adopted while examining survivors of sexual assult and rape and also held that any person who conducts the "Two finger test" or per vaginum examination (while examining a person alleged to have been subjected to a sexual assault) in contravention of the directions of this Court shall be guilty of misconduct.
Criminal force and assault against women
Section 74 provides punishment for using assault or criminal force with intent to outrage modesty of woman. The punishment in such cases shall not be less than one year which may extend to five years and shall also be liable to fine. The section has been enacted with a view to protect woman from indecent assault as well as to safeguard public morality. Following are the ingredients of the offence:-
1. Assault or use of criminal force on any woman.
2. Intention to outrage her modesty or with knowledge that modesty will be outraged.
The definition of modesty of woman is not given in Bharatiya Nyaya Sanhita. It depends on the facts and circumstances of the case taking into consideration the moral, social and legal ethos prevalent in the society. There is no abstract conception of modesty that can be applied to all cases [State of Punjab v. Major Singh, AIR 1967 SC 63].
In Pandurang Mahale v. State of Maharashtra, AIR 2004 SC 1677 Supreme Court held that essence of woman's modesty is her sex. Modesty is the virtue which attaches to a female owing to her sex. Culpable intention of the accused in the gist of the offence. In Rupan Deol Bajaj v. KPS Gill, AIR 1996 SC 309 Supreme Court held that slapping woman on her posterior amounted to outraging her modesty within the meaning of Section 354 and 509 of IPC [Now Section 74 and 79 of BNS].
Sexual harassment and punishment for sexual harassment
Section 75(1) provides that a man committing any of the following acts -
i. Physical contact and advances involving unwelcome and explicit sexual overtures; or
ii. A demand or request for sexual favours; or
iii. Showing pornography against the will of a woman; or
iv. Making sexually coloured remarks,
shall be guilty of the offence of sexual harassment.
Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both [Section 75(2)].
Any man who commits the offence specified in clause (iv) of sub-Section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. [Section 75(3)].
Sexual harassment at workplace: Sexual Harassment at workplace is governed by the Sexual Harassment of woman at workplace (Prevention, Prohibition and Redressal) Act, 2013. This is a special legislation which lays down elaborate procedure for prevention, prohibition and redressal of sexual harassment of women at workplace.
Assault or use of criminal force to woman with intent to disrobe
Section 76 provides that whoever:-
i. Assaults or
ii. Use criminal force to any woman; or
iii. Abets such act with the intention of disrobing or compelling her to be naked,
shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine.
Voyeurism
Section 77 provides that whoever -
i. Watches; or
ii. Captures the image;or
iii. Disseminates the image of a woman
Engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator.
shall be punished
i. On first conviction - With imprisonment for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and
ii. On a second or subsequent conviction - With imprisonment for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.
Explanation 2 appended to Section 77 provides that where the victim consents to capture of the images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall be considered an offence under this section.
Stalking
Section 78 provides that any man who:-
i. Follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or
ii. Monitors the use by a woman of internet, email or any other form of electronic communication, commits the offence of stalking.
Such conduct shall not amount to stalking if the man who pursued it proves that -
i. It was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or
ii. It was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or
iii. In the particular circumstances such conduct was reasonable and justified.
Section 78(2) provides that whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.
Word, gesture or act intended to insult modesty of a woman
Section 79 provides whoever, intending to insult the modesty of any woman, utters any words, makes any sound or gesture, or exhibits any object in any form, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.
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