This article is written by Snehamayee sahu, a First-year student of LLM in Business Law. She is a legal researcher and writer specializing in different legal topics and justice reforms. She has done thorough research on the recent topic and expressed the legal and statutory provisions relating to the same.
Introduction
Under Indian Penal Code, rape was recognized as one of the heinous offenses. Similarly, under Bharatiya Nyaya Sanhita, 2023, the Parliament has incorporated this offense in the starting sections of the Sanhita, which highlights the alarming growth of offenses against women and children.
Severe punishments have also been prescribed for such an offense, keeping in mind the deterrent and reformative theory of punishment. It aims to deter hardened criminals from further committing such an offense. This can be achieved by punishing the rape convicts and creating fear in the minds of others.
What is Rape?
The term ‘Rape’ has been derived from the Latin word ‘Rapio’, which means to seize. So, in a literal sense, it can be termed as forcible seizure of someone’s liberty. In laymen’s language it can be termed as intercourse with a woman without her consent and against her will by the use of force or fraud.
Rape is a serious offense which is specifically made punishable under BNS, 2023. It is an offense violating the dignity of a woman, personal freedom, and physical safety. The Bharatiya Nyaya Sanhita, 2023 (BNS) has prioritized offenses against women and children to protect their rights and well-being.
The gravity of offense differs as per various factors such as consent, age, mental state, and the ability to communicate. This is not an offense against a single individual but rather against the entire society.
The law defines rape as any forced sexual act using body parts or objects, including situations where consent is not valid due to coercion or incapacity. The BNS ensures legal protection and justice for survivors.
Statutory Definition of Rape law under BNS – Section 63 BNS
According to Section 63 of BNS, 2023, a man is said to commit rape when he penetrates his penis to any extent into the vagina of a woman. How far it has gone inside is immaterial to constitute this offense. The following acts of a man amount to rape-
Clause (a): When a man causes penetration of his penis to any extent into the vagina, mouth, urethra, or anus of a woman is rape. When such a man either does it himself or makes the woman do so with him, both constitute the offense.
Clause (b): When a man inserts to any extent any object or any part of his body other than the penis into the vagina, urethra, or anus of a woman. Either he does it himself or makes the woman to do so with him, or any other person, he is said to have committed the offence.
Clause (c): A man manipulates any part of the body of a woman to cause penetration of the penis into the vagina, urethra, anus, or any part of her body or makes her to do so with him or any other person.
Clause (d): A man applies his mouth to the vagina, anus, or urethra or makes the woman do such act, whether to himself or makes any other person do so.
If a man does the above-mentioned acts under the following circumstances, it amounts to rape:
- Against the will of the woman.
- Without her consent.
- With consent, but the consent is obtained by putting her or any person in whom she is interested in the fear of death or hurt.
- With her consent, if the man knows he is not her husband but takes undue advantage of her belief that he is someone she is legally married to or thinks she is married to.
- With her consent, but at the time, she is unable to understand the consequences of her consent because of some mental illness, intoxicated, or under the influence of a substance given by him or someone else.
- Whether with or without her consent, when she is under the age of eighteen.
- When she is unable to communicate her consent.
What does consent mean under BNS, 2023?
According to explanation 2 of section 63, consent means a clear and voluntary agreement where the woman expresses her willingness to engage in a specific sexual act through words, gestures, or any form of communication, whether verbal or non-verbal.
Ingredients of the Section of Rape under BNS
- Sexual Intercourse by Penetration
Sexual intercourse generally means heterosexual intercourse involving penetration of the vagina by the penis. As per the explanation of section 63, the mere slightest or partial penetration of the male organ with the labia majora or the vulva or pudenda constitutes sexual intercourse. Even the slightest degree of penetration is sufficient and the depth of penetration is immaterial. Intercourse can be proved by proving that there is a penetration.
- Against her will
The woman with whom rape is committed must be in her senses and capable of exercising her volition. Here ‘will’ means the facility or power of the mind to decide whether to do or not to do a certain thing.
Against her will means the act is committed despite the opposition of the woman to the doing of it when she’s conscious. When a person commits sexual intercourse with a woman when she is asleep constitutes rape. In this case, the man is guilty of rape even when the woman gives consent to such act.
- Without her consent
A woman is said to consent when she agrees to submit herself while having free possession of her physical and moral power to act. When there is resistance by a woman, it is said that she didn’t consent.
- Consent obtained under fear of death or hurt
Clause (3) of section 63 states that when consent is obtained by putting the woman or any other person in whom she is interested, in fear of death or of hurt, is deemed to be no consent and hence the act amounts to rape.
- Misconception of facts
Clause (4) of section 63 states that consent is obtained by fraud and my misconception of facts is no consent. To prove the fact of rape, it is important to prove that the consent was given by the prosecutrix under the belief that the accused was another person whom she believed herself to be lawfully married. A consent for sexual intercourse obtained by a false promise to marry is not true consent, if it is proved that the intention of the accused was not to marry since the inception.
- Consent of an insane or intoxicated woman
Clause (5) of section 63 invalidates the consent of a woman if the woman is unsound mind, or is under the influence of intoxication when her consent was obtained.
In Tulshidas Kanolkar vs State of Goa, the Hon’ble Supreme Court held that consent given by a mentally challenges girl for sexual intercourse can’t be said to be consent as she is incapable of understanding the consequences of her consent.
- Consent of a woman under 18 years of age
Clause (6) of section 63 states that sexual intercourse with a woman under 18 years of age constitutes rape whether it’s done with her consent or not. This is because the consent of a minor is no consent.
In R vs. Tabassum, it was held that mere submission or silence is not consent.
Before the 2013 amendment to the Criminal Procedure Code, the age was stipulated as 16 years, however, after the amendment, the age limit has been lifted to 18.
In Harpal Singh vs. State of Himachal Pradesh (1981), the Hon’ble SC held that once it is proved that the girl was below 16 years of age, the question of consent becomes wholly irrelevant.
- Marital Rape
According to Explanation 2 of section 63, sexual intercourse by a husband with his wife, wife being below 18 years of age, amounts to rape. Also, if the husband commits sexual intercourse with his wife, who is living separately from him, is a rape.
Punishment for rape under BNS
According to section 64(1), whoever commits rape shall be sentenced to rigorous imprisonment for a term not less than ten years but may extend to life imprisonment and shall be liable to fine.
Other Provisions Relating to Rape under BNS
According to section 64(2), there are various forms of rape which are committed by various authorities that prescribe more aggravated punishment, as mentioned below:
- If a police officer commits rape within the limits of the police station to which he is appointed, he shall be punished with rigorous imprisonment for no less than ten years, which may extend to life imprisonment, and he shall also be liable to a fine.
- If a police officer commits rape on the premises of any station house, he shall be punished with rigorous imprisonment for no less than ten years, which may extend to life imprisonment, and he shall also be liable to a fine.
- If a police officer commits rape on a woman in his custody or in the custody of a subordinate police officer, he shall be punished with rigorous imprisonment for no less than ten years, which may extend to life imprisonment, and he shall also be liable to a fine.
- If a public servant commits rape on a woman in his custody or in the custody of a subordinate public servant, he shall be punished with rigorous imprisonment for no less than ten years, which may extend to life imprisonment, and he shall also be liable to a fine.
- If a member of the armed forces, deployed by the Central or State Government, commits rape in that area, he shall be punished with rigorous imprisonment for no less than ten years, which may extend to life imprisonment, and he shall also be liable to a fine.
- If a person on the management or staff of a jail, remand home, or any other legally established place of custody, or a women’s or children’s institution, commits rape on any inmate of that facility, he shall be punished with rigorous imprisonment for no less than ten years, which may extend to life imprisonment, and he shall also be liable to a fine.
- If a person on the management or staff of a hospital commits rape on a woman in that hospital, he shall be punished with rigorous imprisonment for no less than ten years, which may extend to life imprisonment, and he shall also be liable to a fine.
- If a relative, guardian, teacher, or any person in a position of trust or authority towards a woman commits rape on her, he shall be punished with rigorous imprisonment for no less than ten years, which may extend to life imprisonment, and he shall also be liable to a fine.
- If anyone commits rape during communal or sectarian violence, he shall be punished with rigorous imprisonment for no less than ten years, which may extend to life imprisonment, and he shall also be liable to a fine.
- If anyone commits rape on a woman while knowing that she is pregnant, he shall be punished with rigorous imprisonment for no less than ten years, which may extend to life imprisonment, and he shall also be liable to a fine.
- If anyone commits rape on a woman who is incapable of giving consent, he shall be punished with rigorous imprisonment for no less than ten years, which may extend to life imprisonment, and he shall also be liable to a fine.
- If anyone in a position of control or dominance over a woman commits rape on her, he shall be punished with rigorous imprisonment for no less than ten years, which may extend to life imprisonment, and he shall also be liable to a fine.
- If anyone commits rape on a woman suffering from a mental or physical disability, he shall be punished with rigorous imprisonment for no less than ten years, which may extend to life imprisonment, and he shall also be liable to a fine.
- If anyone causes grievous bodily harm, maims, disfigures, or endangers the life of a woman while committing rape, he shall be punished with rigorous imprisonment for no less than ten years, which may extend to life imprisonment, and he shall also be liable to a fine.
- If anyone commits rape repeatedly on the same woman, he shall be punished with rigorous imprisonment for no less than ten years, which may extend to life imprisonment, and he shall also be liable to a fine.
Sections 65 to 73 underline the following offenses and prescribe punishment for each of the offenses:
Section 65: Punishment for Rape in Certain Cases
- If someone rapes a woman under 16, they will be imprisoned for at least 20 years (possibly for life) and must pay a fine to cover the victim’s medical and rehabilitation expenses.
- If someone rapes a woman under 12, they will be imprisoned for at least 20 years (possibly for life or even receive the death penalty) and must pay a fine as above.
Section 66: Punishment for Causing Death or a Persistent Vegetative State
If, during the commission of an offense under Section 64, 65, or 66, the offender causes a woman’s death or leaves her in a persistent vegetative state, they will be imprisoned for at least 20 years, potentially for life, or even face the death penalty.
Section 67: Sexual Intercourse by Husband During Separation
If a husband has sexual intercourse with his wife, who is living separately without her consent, he will be imprisoned for at least 2 years and up to 7 years, and he will also be fined.
Section 68: Sexual Intercourse by a Person in Authority
If a person in a position of authority or trust (such as a public servant, jail official, or hospital staff) abuses their power to seduce a woman into sexual intercourse, they will be imprisoned for at least 5 years and up to 10 years, along with a fine; here, “sexual intercourse” is defined as in Section 63, and “superintendent” includes any official with control over inmates.
Section 69: Sexual Intercourse by Employing Deceitful Means
If someone uses deceit or makes a false promise to marry a woman to have sexual intercourse with her, they will be imprisoned for up to 10 years and will also be fined; “deceitful means” include false promises related to marriage or employment.
Section 70: Gang Rape
If a group commits rape on a woman, each member is punished with at least 20 years of rigorous imprisonment, which may extend to life, along with a fine, and if the victim is under 18, the punishment is life imprisonment or death with a fine.
Section 71: Punishment for Repeat Offenders
If a person previously convicted under Sections 64, 65, 66, or 70 commits another similar offense, they will be punished with life imprisonment (or death).
Section 72: Disclosure of the Identity of a Victim
If someone prints or publishes information revealing the identity of a victim from these offenses, they can be imprisoned for up to 2 years and fined, unless done by police order, with the victim’s consent, or with the next of kin’s written authorization from a recognized welfare institution.
Section 73: Publishing Court Proceedings Without Permission
If anyone prints or publishes any matter related to court proceedings about these offenses without prior court permission, they will be imprisoned for up to 2 years and also be liable to a fine.
Evidence of Prosecutrix
In a rape offense, the primary witness is the prosecutrix itself. The evidence of the prosecutrix is highly essential against the accused. Even it’s settled that there can be conviction of an accused solely based on the testimony of the prosecutrix.
In the State of Punjab vs. Gurmit Singh, the Hon’ble SC has held that courts can rely upon the evidence of the prosecutrix, even without seeking corroboration, if it inspires confidence.
In the case of rape, the onus is always on the prosecution to prove each ingredient of the offense it seeks to establish and the onus never shifts.
In summary, understanding the rape laws under BNS is key to protecting survivors and ensuring justice. This article has outlined strict punishments for offenders, especially in cases involving vulnerable victims, and explained how these laws aim to uphold dignity and safety. Whether you’re a law student, an advocate, or someone seeking clarity on your rights, being informed empowers you to stand up against injustice.
Reference link:
https://devgan.in/bns/section/63
https://www.myjudix.com/post/rape-laws-under-bns-all-you-need-to-know-bharatiya-nyaya-sanhita
https://www.myjudix.com/post/rape-laws-under-bns-all-you-need-to-know-bharatiya-nyaya-sanhita
