Sexual Assault or Rape

Section 375: A man is said to commit rape if he

  • 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
  • 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
  • Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any other part of the body of such woman or makes her to do so with him or any other person; or
  • 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 -
    1. Against her will
    2. Without her consent
    3. 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
    4. With her consent, when the man knows that he is not her husband and that her consent is given because she believes herself to be lawfully married to him
    5. With her consent when, at the time of giving such consent due to unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or harmful substance, she is unable to understand the nature and consequences of that to which she gives consent
    6. With or without her consent, when she is under 18 years of age
    7. When she is unable to communicate consent

Penetration is sufficient to constitute the act as an offence of rape.

  • 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 fifteen years of age, is not 'rape'.*

Section 357C - Treatment of Victims 

All hospitals, public or private, whether run by the Central Government, the State Government, local bodies or any other person, shall immediately, provide the first-aid or medical treatment, free of cost, to the victims of any offence covered under section 326A, 376, 376A, 376B, 376C, 376D or section 376E of the Indian Penal Code, and shall immediately inform the police of such incident.

Section 376: Punishment for rape

Description:

(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 women 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 in 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 on a woman 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 a home for neglected woman or children or a widows’ home or by any other name, which is established and maintained for the reception and care of woman 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.]

Punishments:

Rigorous imprisonment term not less than 20 years, which may extend to imprisonment for life and shall also, be liable to fine.

Such an offence is cognizable, non- bail able and can be tried by Court of Session.

Section 376 A: Punishment for causing death or resulting in persistent vegetative state of victim

Description:

Whoever, commits an offence punishable under sub-section (1) or (2) of S. 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state,

Punishments:

Imprisonment term not less than 20 years, but which may extend to life or death.

Such an offence is cognizable, non- bail able and can be tried by Court of Session.

Section 376 B: Sexual intercourse by husband upon his wife during separation

Description:

Whoever has sexual intercouse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent.

Punishments:

Rigorous imprisonment term not less than 5 years, which may extend to 7 years, and shall also, be liable to fine.
Such an offence is cognizable, non- bail able and can be tried by Court of Session.

Section 376 C: Sexual Intercourse by person in authority

Description:

Whoever, being —

  1. in a position of authority or in a fiduciary relationship; or
  2. a public servant; or
  3. 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 on the management of a women's or children's institute, or 
  4. on the management of a hospital or being on the staff of a hospital, abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape,

Punishments:

Rigorous imprisonment term not less than 5 years, which may extend to 10 years, and shall also, be liable to fine.

Such an offence is cognizable, non- bail able and can be tried by Court of Session.

Section 376 D: Gang rape

Description:

Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention each of those persons shall be deemed to have committed the offence of rape

Punishments:

Imprisonment term not less than 20 years, but which may extend to life and with fine:

  • Such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
  • The fine imposed shall be paid to the victim.

Section 376 E: Punishment for repeat offenders:

Whoever has been previously convicted of an offence punishable under Section 376 or 376A or 376B and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life or with death.
Such an offence is cognizable, non- bail able and can be tried by Court of Session.

LEGAL ACTION

POLICE COMPLAINT PROCEDURE

Police Station has ‘Rapid Response Desk for Children, Women and Senior Citizens’ where a designated Lady Officer sits. The victim, at first, approach the official of the rapid response desk. If the Lady Officer is not available at that time; the victim can approach the approach the officer in charge.

  1. If no lady officer is available, a lady constable must take the statement. However, if the latter in also unavailable, a lady representative from an NGO must be called. The victim can also choose to give her statement in the front of her parents/guardian.
  2. No Police officer can refuse to file an FIR under any given circumstances. A statement will be recorded in the FIR according to the victim’s narration of the incident, in language that Victim is comfortable in. The recording officer will translate the statement in a language understand by the victim and fill up the FIR form. On the basis of the victim’s statement, the sections of the offences are determined.
  3. If the victim is under trauma; her parents, or relatives, or friends can approach the police. A lady officer will be sent to victim’s place (residence or hospital), where the statement is recorded.

 POLICE INVESTIGATION

  1. The police station that registers the complaint forwards the details to the police station nearest to where the crime was committed (if the two are not the same) and they take over.
  2. An investigation is initiated on the basis of the victim’s description of the offender. Cases of rape require collection of medical evidence that can be done by government hospitals or private hospitals; however police stations suggest government hospitals. The police officials direct the victim to the nearest government hospital or the victim is free to go to a government hospital of her choice. After the medical test is done, the victim has no further obligations. The test reports are collected and sent to the courts by police officials.
  3. Police stations cannot grant bail to such an offender. The courts, however, can in exceptional cases, grant a conditioned bail under which the accused is to keep away from the victim and no one from his end is to intimidate the victim or her relatives to withdraw the case.
  4. The material evidence collected are stored as muddemal articles (items used for crime and recovered from the accused) in custody of the police personnel in a sealed condition along with a Panchanama, later produced in court.
  5. After an arrest, a charge sheet is made and sent to the court. The accused is to be produced before a court of law within a period of 24 hours. This entire procedure takes up a maximum time period of up to 3 months. The Investigation Officer (IO) stays the same throughout the period of the case. In case of transfer or retirement of an IO, the matter is handed over to the new IO. During court hearings, regardless of retirement or transfer: all the IO's dealing with the case must appear before the court to give their statement. The case is fought by the lawyers towards a verdict.

PROCEDURE TO TAKE SURVIVOR'S INFORMATION

  1. Is covered under Sec. 154 of Code of Criminal Procedure. 
  • Every information relating to the commission of the offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; the written statement shall then be signed by the informant/ victim, and the statement should be entered in a book to be kept by the officer in such form as the State Government may prescribe.
  • If the informant is a woman complaining about any sexual offences, whether committed or attempted, the information shall be recorded by a woman police officeror any woman officer;
  • If the woman who is the victim is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the personseeking to report such offence or at a convenient place of such person’s choice, in the presence of an interpreter or a special educator, as the case may be;
  • the recording of such information shall be video graphed; 
  1. A copy of the information as recorded shall be given free of cost to the informant. 
  1. Any person, aggrieved by a refusal on the part of an officer in charge of a police stationto record the information may send the information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.

MEDICAL EXAMINATION OF THE ACCUSED

  • This is covered under Sec 53A of the Code of Criminal Procedure.
  • When a person is arrested on a charge of committing or an attempt to commit rape, in order to find evidence, an examination of the accused/arrested person is conducted by a registered medical practitioner employed in a hospital run by the Government or by a local authority.
  • The medical practitioner shall, without delay, examine such person and prepare a report stating :
    1. the name and address of the accused and of the person by whom he was brought,
    2. the age of the accused and any marks of injury on his body
    3. the description of material taken from the accused for DNA profiling and test reports of his blood for alcohol/ intoxicants.
  • The report shall state precisely the reasons for each conclusion arrived at and the exact time of commencement and completion of the examination.
    The medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate.