Crime & Punishments
Rape under Penal Law
Under section 375 of the Penal Code 1860, a man is said to commit rape who except in the case hereinafter excepted, has sexual intercourse with a women under circumstance falling under any of the five following description.-
Clause-1: “Against her will”- the first clause is evidently intended to refer to a fully conscious normal person- one who is in full possession of her senses and reason and is capable of exercising her own volition.
Clause-2: “without her consent”- Here consent must be given freely. It may be express or implied. But there can be no consent when the woman raped is in a state of insensibility and, therefore, unable to exercise any judgment. In addition consent obtained by fraud is not consent within the meaning of the law.
Clause-3: Consent by “fear of death or hurt”- so, again, by parity of reasoning, a consent obtained “under fear of injury” is no consent at all, if the person doing the act knew or had to believe that the consent was given in consequence of such fear.
Clause 4: Consent under misconception of facts - “With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that she is another man to whom she is or believes herself to be lawfully married.”
The fourth clause was enacted as a dissent from the view, that if a man had connection with a married woman with fraud, having induced her to believe that he was her husband and she having consented, under such belief, the act was not “rape”.
Clause 5: Under Fourteen Years of Age - “With or without consent, when she is under fourteen years of age.”
This is an important clause and it has been simply declares that an act even though committed with the consent of a child under 14 years of age would be rape, her consent and precocity will both being immaterial.
Explanation: Necessity of penetration - “Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.”
A slight degree of penetration has been held to be sufficient to constitute offence under the section”. The penetration may not be sufficient to deprive the woman of the marks of virginity by rupturing the hymen, but that there must be some penetration without which there can be no rape, though there may be an attempt.
In the case of Saleh Muhammad v. State, 18 DLR 1966, Supreme Court held that, Absence of semen in the vagina does not necessarily disprove that the woman was raped. The absence of injuries on the private parts of the complainant can easily be explained by the fact that the complainant had intercourse before. The presence of spermatozoa in the vagina is conclusive proof of sexual connection but not of rape; their absence is no proof that connection had not taken place for they may have been removed by washing.
Exception: Forcible Sex by Husband - “Sexual intercourse by a man with his own wife, the wife not being under thirteen years of age, is not rape.”
The exception lays down that sexual intercourse by a man with his own wife, the wife not being under thirteen years of age, is not rape. The marital right of the husband to have sexual intercourse with his wife exists by the virtue of the consent given by the wife at the time of marriage and not by virtue of a consent given at the time of each act of intercourse, as in the case of unmarried person.
Punishment for rape
S.376 of Penal Code 1860 states as follows:
Whoever commits rape shall be punished with imprisonment for life or with imprisonment of either description 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 case he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine, or with both.
Compiled by Law Desk.
