Sexual Offences including rape and Sodomy (Sections 375 to 377)

Author : Sweta Upadhyay

ABSTRACT

This topic is about the Sexual offence, most heinous crime  Rape. In this article I try to deal with the legal provision related to sexual offences under Indian Penal Code. What are the punishment prescribed under Indian penal code. Article   talk about the Criminal Amendment Act 2013. Finally this article talk about the  Unnatural offences, ( sodomy , buggery, and bestiality).

KEYWORDS:- , Sodomy, Rape, Unnatural offences, sodomy , buggery, and bestiality

INTRODUCTION

Sex is a natural instinct of human beings like other creatures. Biologically, sex is taken into account as a powerful analgesic.

It cures the sick and makes the healthy, healthier. Good sex life keeps one in fine condition. It has, therefore, medically been established that an honest sex life features quite advantages over sexual frustration or self-imposed celibacy. But sexual instinct of citizenry isn’t abnormal, rather it’s a sacred and natural gift to mankind.

But, the beast in human, at times, exposes its ugly face leading to incidents of forced and induced sexual offences against the desire and consent of innocent women.

The sex crimes show a galloping increase within today society and unless immediate and drastic measures are taken, the results may address be disastrous.

SEXUAL OFFENCES UNDER INDIAN PENAL CODE

Sexual offences under Indian code are broadly be divided into subsequent three categories:

1. Rape as defined in Section 375.
2. sexual activity as explained in Sections 376A to 376D, and
3.  Unnatural offences of carnal intercourse as defined under Section 377.

Kinds of Sexual Offences: quite the sexual offences are mentioned bellow:

1. Rape,
2. Unnatural offences, ( sodomy , buggery, and bastiality)
3. Homosexuality,
4. Prostitution,
5. Pornography and Indecency.

Rape

Country like India where most of the rape cases weren’t reported because of society or family pressure or because or other reason.

Consistent with the National Crime Record Bureau(NCIB) till 2018 a mean of 80 murders, 289 kidnappings and 91 rapes were reported every single day across the country in 2018, consistent with the foremost recent data by the National Crime Records Bureau (NCRB).

The quantity of cases registered under the ‘crime against women’ category in 2018 was 3,78,277, up from 3,59,849 in 2017 and three,38,954 in 2016.

The quantity of rape cases, as defined in IPC section 376, were 33,356 in 2018.In 2017, 32,559 rape cases were registered, while in 2016 the quantity stood at 38,947, the info stated.

These crime data are made consistent with the cases filed within the court but what about those incidents which are never reported within the police headquarters because of illiteracy, lack of awareness, fear of respect, fear from society, just consider that.

Also, we cannot blame the laws associated with sexual offences because now the courts after the outrage of the severe cases, especially after the Nirbhaya case have made vital amendments like they need widened the definition and scope of rape because earlier the definition was just restricted to the ‘Sexual Intercourse’ which was interpreted as “Mere slightest or partial penetration of the male organ with the labium or the vulva or pudenda is sufficient to commit a rape” but after The code Amendment Bill, 2013 they need explained the entire definition and made it very clear.

Now, the definition of the term “Rape” under Section 375 of IPC is defined as “ a private is claimed to commit a rape if he penetrates his anus into any extent into the vagina, mouth, urethra or anus of a lady or inserts any object, to any extent, or any an area of a body aside from the anus into the vagina, urethra and anus of a lady or applies his mouth into the vagina, urethra or anus of a lady or makes her to undertake to to so with him or the other person”.

Also, this definition is further subjected to the several circumstances like if the act is completed against her will or without her consent or if the consent is taken by coercion or if the consent is obtained by fraud or if the consent is obtained when the girl was in intoxication or was unsound at that point or obtaining the consent of a woman which isn’t ready to communicate and thus the foremost vital when the act is completed with or without the consent of a woman below 18 years aged.

After, the Nirbhaya case, the age of consent was extended from 16 years to 18 years because the court believed that even at the age of 16, the girl is capable of giving the consent and thus the accused is additionally capable of the act which he’s doing and thus he shouldn’t be prosecuted under the Juvenile Justice Act.

Essential ingredients

1. Against her will;
2. Without her consent;
3. With consent obtained by putting her or the other person in whom she is interested under fear of death or of hurt;
4. With consent given under a misconception of undeniable fact that the person was her husband.
5. Consent is given by the rationale of unsoundness of mind, or under the intoxication of any stupefying or unwholesome substance;
6. Women under the age of eighteen with or without consent;
7. When a lady is unable to speak consent.

Kinds of Rape

Rape are often of subsequent two kinds under the I.P.C., namely:

1. Rape by one individual (Section 376) (1); and
2. Rape by quite one individual or “Gang Rape” (Section 376 (2) (g).
3. Marital Rape (376-B)
4. Custodial Rape (376-C)

Unnatural Offences:

Section 377 of Indian code 1860, incorporated provision associated with unnatural offences. Mentioning about imprisonment for all times or of ten years against the one who is voluntarily doing carnal intercourse against nature with any man, woman or animal and shall even be responsible for fine. This section came into existence in 1861 during British rule where the term “against nature” included homosexual activities. Unnatural offences also include sterilization, sodomy, bestiality etc

Constitutional Validity of section 377:

Section 377 was first challenged by an NGO, Naz Foundation and AIDS Bhedbha v. Virodh Andolan[1] within the Delhi supreme court in 2001 as violative of the Article 14, Article 15 and Article 21 of the Indian Constitution on behalf of the Lesbians, Gay, Bisexual, Transgenders because no educational, constitutional rights were there for them, they weren’t treated slightly a touch just like the quality man or woman and thus their conditions were worst.

Then, by taking into consideration the conditions of the transgenders, in 2014, the Court has made the transgender quota and has categorized them into the opposite Backward Castes(OBC).

Later Supreme Court within the right to Privacy judgement also involved equality and condemned discrimination, stating that the protection of sexual orientation lies at the core of the essential rights which the rights of the LGBT population are real and founded on constitutional doctrine.

In January 2018, a three-member bench of the SC heard the petition by filed by five people to review the judgement given in Naz Foundation Case and thus the SC have finally decriminalized homosexuality by declaring Section 377 of the Indian code as unconstitutional.

The Apex Court unanimously ruled that individual autonomy, intimacy and identity are protected fundamental rights and scrapped the controversial Section 377 of IPC- a 158-year-old colonial law on consensual gay sex.

The Supreme Court reversed its own decision and scrapped section 377 of IPC that criminalized homosexuality and opined that the appliance of Section 377 to consensual homosexual sex between adults was unconstitutional, irrational, indefensible and manifestly arbitrary.

But Section 377 remains effective concerning sex with minors, non-consensual sexual acts, and bestiality.

LANDMARK CASES:

1. Nirbhaya case[2] have made vital amendments like they need widened the definition and scope of rape because earlier the definition was just restricted to the ‘Sexual Intercourse’ which was interpreted as “Mere slightest or partial penetration of the male organ with the labium or the vulva or pudenda is sufficient to commit a rape” but after The code Amendment Bill, 2013 they need explained the entire definition and made it very clear.

2. Mathura case[3]: ( Tuka Ram And Anr vs State Of Maharashtra) She was a sixteen-year-old girl  was raped by two policemen on the compound of Desai Ganj police headquarters in Chandrapur.

Her relatives sat outside to file a police report against a theft, during this case, both the supreme court and later Supreme Court acquitted the policemen on the bottom that Mathura was habitual of sex and didn’t choose help which led to the amendment of Evidence Act in 1983 (114-A).

This allowed the woman’s word to be trusted for her no consent. In 1983 the primary amendment to legal code published. when the Evidence Act was changed to state that if a rape victim says she didn’t consent to sexual activity, the courts will presume so. ‘Custodial Rape’ was also introduced within the IPC .

3. State of Punjab v. Gurmit Singh: [4]The Supreme Court has advised the lower judiciary, albeit the victim girl is shown to be habituated to sex. The Court shouldn’t describe her to be of worst character.

4. Suo Motto v. State of Rajasthan: [5] Suo Motto referred to as German Lady rape case.

Honorable Mr. Justice N.N. Mathur, who wrote the judgment, took Suo Motto cognizance of a rape case of a far off tourist in Rajasthan May 2005. which had hit the headlines of State and national newspapers.

During this rape case, the court says  the criminal justice system must be addressed from the purpose of view of systemic victim support service. there’s important to market active role of police also as trial courts.

5. State of Maharashtra vs. Madhukar N. Mardikar[6] the Supreme Court held that even a prostitute features a right to privacy and no-one can rape her simply because she could even be a woman of easy virtue.

The foregoing discussion makes it clear that rape is taken into account as serious offence that not only affects the body of a lady but also her basic human dignity which incorporates her privacy.

CONCLUSION

Rape isn’t a criminal offense against a personal or a lady it’s a criminal offense against the whole society.” These are the wordings of Justice Pasayt . These sexual offences against women invariably happen in lonely places, and there’s less chance to urge a disinterested witness.

To prove these crimes, while the investigating agency and prosecuting agency often fail, our deleterious judiciary and legal requirement that each one cases must be proved beyond reasonable doubt further acts as a blessing to the perpetrator. The failure of those prosecutions encourages the criminal to repeat these quite act.

Rape not only causes physical injuries but more indelibly leaves a scare on the foremost cherished possession of a woman-her dignity, honour, reputation and not the tiniest amount her chastity.

REFERENCE:

1. http://www.legalserviceindia.com/article/l201-Changing-Facets-Of-Sexual-Offences.html
2. https://www.vikaspedia.in/social-welfare/social-awareness/legal-awareness/law-on-outraging-modesty-sexual-harassment-and-stalking-of-women
3. https://criminallawstudiesnluj.wordpress.com/2020/03/27/the-criminal-law-amendment-bill-2019-and-gender-neutral-sexual-offences-in-india/
4. https://indiankanoon.org/search/?formInput=sexual%20offences&pagenum=5

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[1]  Mukesh & Anr vs State For Nct of Delhi &Ors on May, 2017.

[2]

[3] (1979) AIR185, (1979) ACR (1) 810.

[4] ( 1996) AIR 1393, (1996) SCC (2) 384.

[5] RLW 2005 (2) Raj 1385, 2005 (4) WLC 163

[6] AIR 1991 SC 207, 1991 (61) FLR 688, JT 1990 (4) SC 169, (1991) IILLJ 269 SC, 1990 (2) SCALE 849, (1991) 1 SCC 57, 1991 (1) UJ 109 SC