Section 376 IPC-Dhara 376-Dafa 376-Punishment for rape

Section 376 IPC-Dhara 376-Dafa 376-Punishment for rape:

¹[376. Punishment for rape.—(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

(2) Whoever: -

(a) Being a police officer commits rape-

(i) Within the limits of the police station to which he is appointed; or

(ii) In the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii) On a woman is his custody or in the custody of a police officer subordinate to him; or

(b) Being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) Being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or

(d) Being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

(e) Commits rape on a woman knowing her to be pregnant; or

(f) Commits rape when she is under twelve years of age; or

(g) Commits gang rape,

Shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Explanation 1

Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.

Explanation 2

"Women's or children's institution "means an institution, whether called an orphanage or home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.

Explanation: 3

"Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation].

CLASSIFICATION OF OFFENCE

Para I

Punishment—Imprisonment for life or imprisonment for ten years and fine—Cognizable—Non-bailable—Triable by Court of Ses­sion—Non-compoundable.

Para II

Punishment—Imprisonment for two years or fine or both—Non-Cognizable—Bailable—Triable by Court of Session—Non-compoundable.

Comments

Charge

 

Section 376(2)(g) embodies a principle of joint liability and the essence of that liability is the existence of common intention; that common intention presupposes prior concert which may be determined from the conduct of offenders revealed during the course of action and it could arise and be formed suddenly, but there must be meeting of minds. It is not enough to have the same intention independently of each of the offender. In such cases, there must be criminal sharing, marking out a certain measure of jointness in the commission of offence; Ashok Kumar v. State of Haryana, AIR 2003 SC 777.

 

Corroborative evidence

 

Corroborative evidence is not an imperative component of judicial credence in every case of rape; State of Maharashtra v. Suresh Nivruthi Bhusare, (1997) 2 Crimes 257 (Bom).

 

Medical evidence

 

(i) Medical evidence corroborated by version of prosecutrix independent witness also in favour of the victim. No evidence of causing an unknown person a false implication at the cost of family name, conviction based on her evidence upheld; Lakha v. State of Rajasthan, 1999 Cr LJ 3418 (Raj).

 

(ii) Where an innocent girl of just 9 years is caught hold and raped by accused, and FIR is lodged well in time, evidence of her testimony also corroborated by medical evidence, no evidence for false implication, failure on part of investigation are not enough to deny version of prosecutrix and other corroborative evidences; Najoor Ahmad v. State of Bihar, 1999 Cr LJ 2550 (Pat).

 

Prosecutrix consenting to sexual intercourse

 

(i) If a woman meekly submits to sexual intercourse it would be a case of consent; State of Maharashtra v. Suresh Nivrutti Bhu­sare, (1997) 2 Crimes 257 (Bom).

 

(ii) Normally a woman would not falsely implicate for the of­fence of rape at the cost of her character. In Indian society, it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped; Madan Lal v. State of Madhya Pradesh, (1997) 2 Crimes 210 (MP).

 

Rape and abetment to suicide

 

It has been held that the concent cannot be inferred merely because co-accused was present in house at the time accused raped the victim. Neither can co-accused be convicted under section 376(2)(g) merely because victim girl allegedly stated before committing suicide that both of accused raped her; Ashok Kumar v. State of Haryana, AIR 2003 SC 777.

 

Rape of a minor

 

(i) Where a minor girl just 10 years of age raped by accused, a minor of 16 years on the date of incident, convicted and sentenced to 3 years R.I., therefore, since then many years added to his age, he cannot be even sent to an approved school under the Act and as such his conviction is maintained but sentence set aside; Bire alias Bir Bahadur Singh v. State of Uttar Pradesh, 2000 Cr LJ 87 (All).

 

(ii) When the prosecutrix is a minor aged below 16 years, the question of her being a consenting party to the sexual inter­course does not arise or is of no consequence; Naresh v. State of Haryana, (1997) 2 Crimes 587 (P&H).

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1. Subs. by Act 43 of 1983, sec. 3, for section 376 (w.e.f. 25-12-1983).