Explain briefly the offence of Rape given under section 375 of Indian Penal Code, 1860.
Since the time immemorial, women are treated like chattel and they are used by men just like a material to satisfy their sexual pleasure. They do not bother whether the woman is willing to have sexual intercourse or not but if they want to have sexual intercourse then they commit it even without the consent of woman or against her will. Such kind of behavior of man adversely affects the dignity of woman which is the soul of every human body.
So, just to protect the dignity of women, the legislature has enacted the law regarding rape. Section 375 of Indian Penal Code, 1860, deals with the provisions of rape. According to this section, if a man commits sexual intercourse with woman without her consent or against her will, then that man will be held liable for having committed the offence of rape.
According to the provisions of section 375 of Indian Penal Code, 1860, if during sexual intercourse a woman does not resist then it does not mean that she has given her consent. Because consent in general sense is bilateral agreement between two persons to commit same act voluntarily and if woman does not have such feeling of voluntariness, then it means that she is not willing to have sexual intercourse.
In the leading case of Tukaram and another vs. State of Maharashtra (SC 1979), the Hon’ble court held that if the woman does not resist or does not raise an alarm for help then in such a case, it will be considered that she has consent and she is willing to have sexual intercourse.
This judgment was criticized all over India because this judgement was against the basic fundamental right of each and every woman. That is why, to nullify this judgment an amendment was made in the year 1983 in section 375 of Indian Penal Code, 1860 and it was mentioned in the abovementioned section that if sexual intercourse is committed with a woman without her consent or against her will then that will be considered rape and the accused will be held liable for having committed the offence of rape under section 375 of Indian Penal Code, 1860.
According to this amendment, the burden of proof was shifted upon accused and in the legal proceedings, to secure the punishment to accused, the prosecution will have to prove actus reus only i.e., penetration and if prosecution proves the actus reus then the burden of proof is shifted upon the accused and he will have to prove that sexual intercourse was consensual one and not against the will of woman. If accused fails to prove the consent of woman then in such a case, he will be held liable for having committed the offence of rape.
The leading case of Sakshi vs. Union of India (SC 2004), was filed by NGO named Sakshi and in this case this NGO insisted to include all kind of forcible penetration under section 375 of Indian Penal Code, 1860, and not just penile/ vaginal penetration. But in this case, the Hon’ble court stated that it is a serious issue and should be addressed by the Parliament. Supreme Court has no power change this definition.
After this case and after the misfortune of Nirbhaya rape case, the legislature amended section 375 of Indian Penal Code, 1860 and increased the punishment so to create more deterrent effect.
But even after this amendment, the incidents of rape did not decrease and the Kathua rape case came into limelight. After this case, legislature again amended the provisions of rape given under Indian Penal Code, 1860 in the year 2018, and increased the punishment to create more deterrent effect and in some provisions decreased the age of female and according to this amendment if rape has been committed against a girl below the prescribed age, then more severe punishment will be inflicted upon the accused. Moreover, by this amendment some provisions were added for speedy disposal of cases and according to this amendment in case of offence committed under Indian Penal Code, 1860 and The Protection of Children from Sexual Offences (POCSO) Act, then higher punishment will be given to the offender.
The offence of rape is the most brutal offence against the woman because it commits not only against the body of woman but it also against the soul of the woman. This offence affects article 21 of Indian Constitution of a woman in every aspect. This article provides a very basic fundamental right i.e., right to live a dignified life and the offence of rape affects the dignity of a woman.
The offence of rape is a composite offence and while committing the offence of rape, the accused not only have sexual intercourse with the woman but he also restraints the body of woman without her consent and defiles her dignity. Dignity is a soul of every human body and without dignity a woman cannot live a respectful life into a society. Because, if the offence of rape has been committed upon a woman, the members of society see that victim as an accomplice that means as a partner in a crime and they started treating woman as a prostitute. Because of such behaviour, it becomes very difficult for her to live a peaceful life in a society.
Usually, the offence of rape is committed secretly and at the time of commission of an offence, no one else the offender and victim present at the place of occurrence and due of lack of direct witnesses sometimes it becomes very difficult for the prosecution to prove the guilt of an accused beyond reasonable doubt and if prosecution fails to prove his burden of prove then in such a case, the court has to give benefit of doubt to the accused. So, to prevent such kind of situations and to secure the punishment to accused, the legislature has enacted the provision under section 114A of Indian Evidence Act, 1872.
According to section 114A of Indian Evidence Act, 1872, if the offence of rape has been committed against a woman and she says in the court that she had no consent then in such a case, the court shall presume that she had no consent and the burden of proof will be upon the accused to prove that she had consent for sexual intercourse.