Understanding Rape in light of Landmark Judgements

Published on: August 02,2021 12:00 IST

By Samriddhi Thakar

Introduction

India has reported 88 rape cases every day in the year 2019. Out of which around 11% of victims belonged to the Dalit community.^[1] Rape is the fourth most common crime in India.

It is unlawful sexual intercourse without the consent of the other person. Earlier, the victims used to hesitate to report the crime as it would bring shame to their families. Further, many cases used to go unreported.

However, now there has been a sharp rise in rape cases. The willingness to report the crime has increased as several incidents of rape have got wide attention from the media and public and forced the Government to reform laws and take stringent action against the accused.

The rape case of Nirbhaya brought about widespread attention of all to the increasing number of cases. Amendments were also made in the law and the punishment was also increased. The Court has given various landmark judgements in this matter. Some of them are mentioned below.

Thus, this article explains various landmark judgements in rape cases.

What is Rape?

Rape is an unlawful sexual activity without the consent of the other person. It is a type of sexual assault conducted against the woman in form of sexual penetration without her consent. It signifies the ravishment of a woman without her consent by force, fear, or fraud.

It has become an offense as it is against the dignity of a woman. Men commit the crime of rape in a very brutal way for which the woman has to suffer her entire life.

It is rape if:

• It is against her own will.
• It is without her consent.
• If the consent is obtained by putting her in fear of death or of hurt.
• If she consents believing that the accused is her husband.
• If the consent is given when she is unsound, intoxicated.
• With or without consent, if she is below 18 years of age.
• When she is unable to communicate consent.

Thus, consent and will are the two most important factors in rape cases as the whole case revolves around the same. Further, the offense of rape is punishable with imprisonment for ten years but may extend to imprisonment for life, and shall be liable for a fine.

Landmark Judgements

• Mukesh & Anr Vs State for NCT of Delhi & Ors^[2] –

The case which brought amendment in rape laws.

Facts

This case is also known as Nirbhaya gang-rape case. The 23-year-old medical student and her friend were returning home at night after watching a movie on 16^th December 2012. They boarded a bus in which there were six other men including the bus driver. The bus started moving in another direction and the doors of the bus were also closed.

Therefore, the friend of the victim started shouting and the men in the bus started molesting the woman. Her friend was hit by a rod and they took her to the backside of the bus and started to gang-rape her for an hour.

As she was trying to fight back, one of the juveniles attacked her with a rod and inserted that rod in her private parts ripping her intestines apart. After the attack, they were thrown from the bus to die on the road.

Later, they were taken to the hospital where it was declared by the doctor that only 5% of her intestines were left in her body. On 29 December 2012, she succumbed to her injuries.

Judgement

The Court convicted all the six men including the juvenile. However, the bus driver committed suicide during the trial in Tihar jail on March 11, 2013. The juvenile was sentenced separately in a juvenile Court and was given the punishment of imprisonment for three years in a reform facility.

Later on, the remaining convicts were awarded capital punishment. Three convicts namely Mukesh, Vinay, Pawan filed for review of the judgement but it was dismissed. Finally on 20^th March 2020 they were hanged to death in Tihar jail.

After this case, amendments were made in the rape laws. The Criminal Law (Amendment) Act, 2013 was passed to amend Section 375 of the Indian Penal Code. The amendment was made to give strict punishment for sexual offenses.

Let’s know Why she is called Nirbhaya?

The rape laws of India do not allow the name of the victim to be published. Therefore, various publications gave her different names out of which Nirbhaya was chosen as it means ‘fearless.’ Hence, the case is known as Nirbhaya Case.

• State of Maharashtra Vs Vijay Mohan Jadhav & Ors^[3]–

This was the first case in which death sentence was awarded to the accused after the Criminal Law (Amendment) Act, 2013.

Facts

This case is also known as Shakti Mills Case. The victim was working as a photojournalist for a magazine. She along with her colleague went to Shakti Mills on 22^nd August 2013 at around 5 pm.

There they met Vijay Jadhav and Salim who helped them to enter the premises of Shakti Mills. Later, Vijay and Salim called their other partners out of which one was juvenile.

They tied her colleague and dragged her to an isolated room where she was gang-raped brutally by all the men. Later, they took her photos and threatened her to release the photos if she complained about them.

Judgement

This case was described as the “rarest of rare” case. It was the first time where the accused were awarded a death sentence under the new section that was added in the new Criminal Law (Amendment) Act, 2013. The Court held all the accused guilty of gang-rape, disrobing, and unnatural offenses.

The Court further gave the death penalty to all the three accused and hence they were hanged to death. However, the juvenile was sentenced to three years in reform school.

• Kathua Rape Case^[4] –

It is a rape with or without consent if the woman is below 18 years of age.

Facts

A small girl of 8 years old named Asifa Bano of Rasana village near Kathua in Jammu and Kashmir went missing from her village. She had gone to bring the horses.

However, the horses returned and Asifa did not return. Later her body was discovered by the villagers a kilometer away from the village. It was a case of gang rape, abduction, and murder of a small girl.

A charge sheet for the case was filed against 8 accused. The trial for the same began in April 2018.

Judgement

The Court convicted six of the seven accused and one was acquitted. Further, Sanji Ram, the village head and the caretaker of the temple where Asifa was gang raped, Deepak Khajuria, and Parvesh Kumar were sentenced to life imprisonment of 25 years.

The other three accused namely Tilak Raj, Anand Dutta, and Surender Verma were sentenced to five years in jail for destroying crucial evidence in the case.

• Priyanka Reddy Rape Case^[5]–

It is the case where harsher punishment was given by the police.

Facts

Dr Priyanka Reddy was a veterinary doctor from Hyderabad. On 28^th November 2018 she was raped, murdered and her body was found burnt on the road.

She was returning home from her job at night and she was raped by four men and then burnt. While she was returning home, her vehicle’s tire got punctured. Suddenly four men came and asked if she needed any help.

Later, they raped and murdered her. Her family tried to contact her however they were not able to so they went to file an FIR in the police station. They found the body half-burnt under the bridge. Soon after, the police started the investigation and arrested four men.

Further, the police took all the accused to the scene of the crime to recover certain articles belonging to the deceased rape victim and for reconstructing the scene of the crime.

However, the accused escaped from the location along with firearms, and hence, the police encountered all of them.

Judgement

The National Human Rights Commission and the Supreme Court have moved against the concerned police encounter of the four accused.

Two Public Interest Litigation (PIL) have been moved by Advocates GS Mani and Pradeep Kumar Yadav, and another by Advocate ML Sharma who has registered an objection to the killings of the accused who were not proven guilty.

• State of Maharashtra Vs Prakash^[6] –

To constitute for the offense of rape, use of force is not necessary, mere threat of use of force is sufficient.

Facts

The victim Nirmala with her husband had come to her village to attend a fair. They were staying at her parent’s house. Around 2 am-midnight, the husband of the victim was called by accused no.2 (businessman) at his house. Later on, again he was called by accused no.1(police constable) at the house of accused no.2.

Accused no.1 alleged that the husband was going to destroy the idol of Ganpati and hence summoned the victim to the house of accused no.2. Reaching the spot, she was forced to sign certain papers under the threat that her husband would be placed in custody in case she does not sign the papers.

The accused took her inside the house and raped her one by one.

Subsequently, a case was filed against the accused. The accused in turn claimed that the victim did not show any signs of resisting the intercourse so they cannot be held liable for forced intercourse.

Judgement

The Bombay High Court held that the said intercourse was neither out of love nor for money. Therefore, the only explanation that remains is that she was coerced into the act.

The Court held that for the offense of rape it is not necessary that there should be actual use of force, a threat of use of force is sufficient.

The victim had mentioned that her husband was beaten and she was threatened that her husband shall be placed in custody. Hence, she submitted herself under the threat of a police constable. Thus, the respondents were held liable under Section 376 of the Indian Penal Code.

• Bhupinder Singh Vs Union Territory of Chandigarh^[7] –

It is rape if a man falsely makes another woman believe that she is lawfully married to him and has sexual intercourse with him when he is in fact already married to someone else.

Facts

The victim was employed in a bank and the accused was also working in another bank. He used to come to her office and they developed intimacy. He asked her for marriage without disclosing that he is already married.

They both got married in a Gurudwara and started living together. Soon after, she got pregnant but the accused got her aborted against her wishes. Further, she also left her service in September 1991 under the pressure of the accused. Later, she again became pregnant.

One day she met the friends of the accused who told her that her husband was already married and was having children from the same wedlock. On the same day, the accused left the home of the victim. So, she filed a complaint against him.

Judgement

The High Court of Punjab and Haryana held that the case was covered by Section 375(4) of the Indian Penal Code which says that it is rape if a man falsely makes another woman believe that she is lawfully married to him and has sexual intercourse with him when he is in fact already married.

The victim in this case had sexual intercourse with the man believing him to be her husband. However, in reality, he was not her legal husband. Thus, the Court imposed rigorous imprisonment for three years and compensation of Rs. 1 lakh.

• Gurmeet Singh & Ors Vs State of Punjab^[8]–

Sexual intercourse against the will of the woman constitutes to rape.

Facts

A young girl below 16 years of age was studying in 10^th standard and was giving her exams. One day after returning from the exam, the accused with others took hold of the girl and took her inside the blue color ambassador car. They threatened her that if she raises her voice, she will be killed to death.

They took her to the kotha of the tube well. Further, they compelled her to drink liquor misrepresenting it to be juice. One by one they committed rape on her and when she raised an alarm she was threatened to kill.

All the boys committed sexual intercourse with the girl against her will. Subsequently, the case was registered in the police station.

Judgement

The Court in this case held that according to Section 327 of the Criminal Procedure Code the trial of sexual offenses should be conducted in camera.

So, the Court held that if a trial is conducted in camera, it will enable the victim of crime to be a little comfortable and answer the questions with greater ease in not too familiar surroundings.

The Court also held that the name and address of the victims should be kept anonyms in the criminal proceedings. It should not be published anywhere to save her from the embarrassment of being a victim of a sex crime.

Hence, the Court punished the accused with rigorous imprisonment of five years and a fine of Rs. 5000.

• Harpal Singh & Ors Vs State of Himachal Pradesh^[9]–

Sexual intercourse without consent is rape.

Facts

A girl below 16 years of age was sent by her mother to visit her ailing aunt in another village. On her way back home, she was falsely told that her brother was lying in the dispensary and she was being called there.

The girl went with the accused and was trapped in a room by him. Two more people came and they all started doing sexual intercourse with her against her will. She was released the next day. However, she and her family decided to keep this a secret.

The matter was subsequently published in a newspaper and the police started an investigation against the same.

Judgement

The Court held that it was quite evident that she was below 16 years of age and was about 15 years of age. Further, she did not give consent for sexual intercourse.

Hence, the accused is liable under Section 375 of the Indian Penal Code. He has to undergo rigorous imprisonment of four years and a fine of Rs.500.

• Himachal Pradesh Vs Mango Ram^[10]

Act committed against the will amounts to rape.

Facts

The victim was the eldest daughter of Jagia Ram. Her mother asked her to get plough. While going there she was accompanied by the accused. When she went inside the house to get plough, the accused caught her from behind.

The victim tried to relieve herself but she was overpowered by the accused. She was made to lie on the floor of the cowshed. The accused then untied the knot of her salwar and lifted it down and thereafter, committed sexual intercourse with her.

There was bleeding from her private part. The victim returned home immediately and told her father Jagia Ram about the incident. Further, FIR was filed against the accused.

Judgement

The Supreme Court, in this case, held that this was a case of rape as the girl tried to relieve herself but the accused overpowered her and the act was committed against her will.

Thus, this amounts to rape under Section 375(2) of the Indian Penal Code. The accused was held liable for the offense of rape.

• State of Maharashtra & Anr Vs Madhukar Narayan Mardikar^[11]–

A woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes.

Facts

The respondent was a police inspector. One day he allegedly visited the hutment of the victim Banubi in uniform. He demanded to have sexual intercourse with her to which she refused. But he had her by force. Therefore, she resisted his attempt and raised a huge cry.

Her husband all the neighbours came outside the hutment. Further, she registered a complaint against the policeman. The respondent contended that the victim was an unchaste woman and her evidence would be unsafe to rely upon.

Judgement

The Court held that a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. So, also it is not open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate it against her wish. She is equally entitled to the protection of law. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard.

Therefore, the Court convicted the respondent and removed him from the service.

• Anurag Soni Vs State of Chhattisgarh^[12]–

Performing sexual intercourse after the refusal of victim amounts to rape.

Facts

The victim was a Pharmacy student and the accused was posted as a junior doctor in a government hospital in some other town. The victim had a love affair with the accused.

The accused had even proposed to her for marriage and this fact was known to their family members.

Due to his posting, he called her at her place. The victim went by train to his place. Further, she stayed at his place. During this period, he tried to establish physical relations with her despite her refusal on the pretext of marriage.

Later, the victim came home and the accused asked the victim not to disclose their physical contact.

After few days, the victim asked the accused about their marriage but she did not receive any reply from him. Further, he refused to marry her on the ground that he had already married another woman. Therefore, the victim filed a case against the accused on the ground of rape.

Judgement

The Supreme Court held that the accused from the beginning did not intend to perform marriage with her and gave false promise of marriage to her due to which she gave consent for the sexual intercourse.

However, the Court held that such consent does not constitute valid consent and comes within the ambit of the misconception of fact given under Section 90 of the Indian Penal Code.

The Court also held that sexual intercourse on a false promise of marriage falls under the ambit of Section 417 Cheating of the Indian Penal Code.

Hence, the Court convicted the accused under Section 375 of the Indian Penal Code and sentenced him to rigorous imprisonment for 10 years and a fine of Rs. 50,000.

• Tulsidas Kanolkar Vs State of Goa^[13]–

Consent obtained due to unsoundness of mind is not a consent, it amounts to rape.

Facts

The victim in this case was mentally impaired. The accused knowing this took advantage of the situation and had sexual intercourse with her. However, no one was aware of this happening.

One fine day her family members found out that she was pregnant. When she was asked who put you in this position, she pointed towards the accused.

Therefore, a case was filed against him. He however contended that he thought the victim gave consent in form of submission to the act.

Judgement

The Court held that the accused took advantage of her mental condition. It is specifically mentioned in Section 375 of the Indian Penal Code that consent obtained due to mental illness/ unsoundness of mind is no consent. It amounts to rape. Hence, it is quite evident that the accused took advantage of the victim and committed rape on her.

Therefore, the accused was sentenced to imprisonment for 10 years and a fine of Rs. 10,000.

• State Of Andhra Pradesh vs Bodem Sundara Rao^[14]

The Supreme Court in this case enhanced the punishment for rape.

Facts

A girl aged between 13-14 years was sexually assaulted by the accused in broad daylight. The girl was carrying lunch for her father who was grazing cattle in the fields. While going there the accused caught hold of her and committed rape on her despite her protestations.

The girl was bleeding profusely from her vagina because of rape. Later, she informed this to her father and mother, and FIR was filed against the accused.

Initially, he was sentenced to rigorous imprisonment of 10 years under Section 376 of the Indian Penal Code. However, he appealed in the High Court and the Court reduced the punishment to 4 years imprisonment.

Judgement

The Supreme Court in this case increased punishment of accused from four years of rigorous imprisonment to seven years of rigorous imprisonment.

The Court held that crime against women are on the rise. Imposition of grossly inadequate sentence and particularly against the mandate of the Legislature not only is an injustice to the victim of the crime in particular and the society as a whole in general but also at times encourages a criminal.  The heinous crime of committing rape on a helpless 13/14 years old girl shakes our judicial conscience. The offence was inhumane. Thus, the punishment was increased.

• Chhote Lal Vs State of UP ^[15]

The Supreme Court in this case explained the meaning of “against the will” in rape cases.

Facts

The victim was going somewhere in the evening. Three accused came and caught hold of her and when she tried to raise an alarm, they gaged her mouth.

Further, they took her to another village. Again, they took her to some another place where they kept her in a rented room.

The accused committed forcible intercourse with her. Whenever the victim asked about returning home, he used to gag her mouth and threaten her. As the victim was missing for many days, her brother filed an FIR against the accused of the kidnapping of his sister.

Later, the victim was found by the police. And complaint was filed against the accused under Section 375 and 376 of the Indian Penal Code.

Judgement

The Supreme Court held the accused guilty and sentenced him to imprisonment. Further, the Court explained the meaning of the phrase against the will.

The Court said that the phrase means sexual intercourse done by a man with a woman despite her resistance and opposition.

Conclusion

Rape in India is a major problem. Now and then we hear rape committed on some or the other women. And the most disgusting part is that the rape is committed on small girls and even old ladies who are of seventy or eighty years of age.

Therefore, it is very necessary to make laws more stringent so that people will think twice before committing such horrendous crimes.

It is also very important for women to report the crime, understand their rights. Then only the crime rate will reduce in our country and once again India will be known as a safe country.

References

• vikaspedia.in
• blog.ipleaders.in

1. Dipu Rai, No country for women: India reported 88 rape cases every day in 2019, India Today, available at: .indiatoday.in (last visited on 24 July 2021) ↑
2. Mukesh & Anr Vs State for NCT of Delhi & Ors, CRIMINAL APPEAL NOS. 607-608 OF 2017 ↑
3. State of Maharashtra Vs Vijay Mohan Jadhav & Ors, Sessions Case no. 846 of 2013 ↑
4. Vishal Jangotra @ Shamma & Anr vs Union of India & Others, CWP No. 19904 of 2018 ↑
5. G.S. Mani vs Union of India, Writ Petition(s)(Criminal) No(s). 348/2019 ↑
6. State of Maharashtra Vs Prakash, AIR 1992 SC 1275 ↑
7. Bhupinder Singh Vs Union Territory of Chandigarh, (2008) 3 CriLj 3456 SC ↑
8. Gurmeet Singh & Ors Vs State of Punjab, 1996 AIR 1393 ↑
9. Harpal Singh & Ors Vs State of Himachal Pradesh ,1976 CriLJ 162 ↑

10. Himachal Pradesh Vs Mango Rao, Criminal Appeal No. 790 of 1996

    ↑

11. State of Maharashtra & Anr Vs Madhukar Narayan Mardikar, AIR 1991 SC 207 ↑
12. Anurag Soni Vs State of Chhattisgarh, Criminal Appeal No. 629 of 2019 ↑
13. Tulsidas Kanolkar Vs State of Goa, (2003) 8 SCC 590  ↑
14. State Of Andhra Pradesh vs Bodem Sundara Rao, 1996 AIR 530 ↑
15. Chhote Lal Vs State of UP, CRIMINAL APPEAL NO. 769 OF 2006 ↑