Rape (Sec 375&

376)
Presentation By: Dr.Bhavana Sharma

Sec 375 define the term rape while 376 punish

the offence of rape sec 376 A- 376 D contains
specific types of Rape (Custodial Rape) and its
punishment.

Sec 375: essential elements of Rape:

1) Sexual intercourse by a man with a woman
2) The sexual intercourse must be under
circumstances falling under any seven
clauses of section 375

Under the circumstances falling

under (First) Against her will.
(Secondly)Without her consent.
(Thirdly) With her consent, when her consent
has been obtained by putting her or any
person in whom she is interested in fear of
death or of hurt.
(Fourthly)With her consent, when the man
knows that he is not her husband, and that
her consent is given because she believes
that he is another man to whom she is or
believes herself to be lawfully married.

(Fifthly) With her consent, when, at the time

of giving such consent, by reason of
unsoundness of mind or intoxication ,she is
unable to understand the nature and
consequences of that to which she gives
consent.
(Sixthly) With or without her consent, when
she is under eighteen years of age.
(Seventhly) when she is unable to
communicate consent

Explanation : consent means when the woman

by words/gesture or any form of
verbal/nonverbal communication,
communicates willingness to participate in the
specific sexual Act

 Every act done against the will of a woman

is done without her consent but an act done

without the consent of a woman is not
necessarily against her will
The expression against her will says that an
act is done in spite of the opposition of the
woman to the doing of it

Exception : 1) A medical procedure shall not

constitute rape
2) Sexual intercourse by a man with his own
wife, the wife not being under fifteen years of
age, is not rape.

The crux of the offence of rape is sexual intercourse

against the will and without the consent of a woman
Acc to sec 375 the offence of rape is said to be committed
1) Against her will
2) Without her consent
3) With consent obtained under fear of death or of hurt
4) With consent but given under misconception of fact
that the man was her husband
5) Consent given by reason of unsoundness of
mind/under influence of intoxication
6) Women under 18 with or without consent

The policy behind exemption from liability in the

case of consent is based on the principle that
a man is the best judge of his or her own
interest and that no man will consent to what
he or she consider injurious to his or her own
interest

Queen v Falttery (1877) 2

QBD
The accused was charged for rape with a rape
of 19 year old girl , the girl who was in ill
health and subject of fits visited to the clinic
of Doctor along with her mother. The Accused
after examining the girl advised her to have a
surgical operation, to which she gave consent,
Under the pretence of performing it , had
sexual intercourse with the girl

Held: the girl consent would not excuse the

accused from conviction . There was a
misconception regarding the nature of Act and
whatever consent was given by the girl was
for the purpose of surgical operation and not
for the sexual intercourse and this fact was
known to doctor
The Accused was held liable for rape

Uday vs State of Karnataka 2003

Cr.LJ 1539
Fact: accused expressed love and promised to
marry the girl on a later date. The girl was
aware that they belonged to different castes
and proposal of marriage will be opposed by
their family members.
Yet girl started cohabiting with the accused and
became pregnant
Than she charged a rape offence on boy

Held : consent given by the girl for cohabitation

cannot be said to be given under
misconception of fact, she had freely ,
voluntarily consented to have sexual
intercourse with the appellant not only on
belief of promise of marriage but because of
their deep love with each other . She had
sufficient intelligence to understand the
significance and moral quality of the act she
was consenting to.
Hence appellant is not liable to be convicted for
an offence of rape under sec 376 of IPC

A , a minor girl aged 15 years due to some

reason leaves her house. At railway station
she meets with B who takes her to his
house . B provides her clothes , money and
ornaments at his house and has sexual
intercourse with the girl with her consent

In this case since the girl has left her

guardianship voluntarily and met B at railway
station who took him to his house
B is not liable for kidnapping from lawful
guardianship but will definitely be liable for
committing the offence of rape because the
girl was minor and minor girls consent will not
come under the category of valid consent

Tukaram v State of Maharashtra AIR

1979 SC (Mathura rape case)
Mathura , 15 year old girl was called to police
station on an abduction report filed by her
brother at police station Desaui Ganj in
Maharashtra on 26th March 1972.
When they were about to leave the police
station , mathura was kept back at the police
station, in the late night one constable
Ganpat, who was on duty raped her. Then
another constable Tukaram also tried to rape
her but being too heavily drunk did not
succeed

None of the accused were held guilty for the following

reason
1) The girl was not subject to any fear
2) There was no marks of injury on her person which
shows that the whole affair was a peaceful one and
that the story of stiff resistance having been put up
by the girl is all false
3) The girl was not alone when the ganpat the ordered
her to stay and she could have resisted and appealed
to her brother
So in this case court presumed there is passive
submission from girl side

Sec 376 (1) Punishment: rigorous imprisonment

of either description which shall not be less
than 7 years but may extend to imprisonment
for life and fine

Burden of proof of innocence , shifts on

accused: for removing the procedural
difficulties in prosecution of a person charged
with rape that sec 114 A has been inserted in
Indian Evidence Act
Sec 114 A :- in a prosecution of rape where
sexual intercourse is proved the court shall
presume the absence of consent and accused
will be liable to prove that act was done under
the consent

Cruelty by husband or
relatives of the husband
(Sec 498 A Criminal
Amendment Act 1983

 This sec was frame to cease the unlawful

demand and Dowry Deaths

Aim: protect a woman by the harassment
( Cruelty) of her Husband or relatives of
Husband.
This section was added with a view to punishing
a husband and his relatives who harass or
torture the wife to coerce her or her relatives
to satisfy unlawful demands of dowry.

B .S Joshi vs State of Haryana 2003

Cr. LJ
Held : that the object of sec 498 A of IPC was to
prevent the torture of woman by husband and
his relative in connection of demand of dowry.

Sec 498 A
Whoever , being the husband or the relatives of
the husband of a woman , subjects such
woman to cruelty shall be punished with
imprisonment for a term which may extend to
three years and shall also be liable to fine

Explanation: Cruelty means:

a) Any willful conduct which is of such nature
as is likely to drive the woman to commit
suicide or to cause grave injury( mental or
physical)
b) Harassment with a view to coercing her or
any person related to her to meet any
unlawful demand for any property / valuable
security

Where it is alleged by the complainant that she

was being continuously threatened that her
son would be taken away unless she met
the demands of the accused by way of
compelling her parents to sell their
property , such threats come with in the
meaning of cruelty under this Section.

Meaning of relatives
V. Seevetha vs State (2009) Cr.LJ: held:
ordinarily the term relative would include
father, mother, brother, sister, husband or
wife of brother and Sister , nephew, niece
means it principally includes a person related
by blood, marriage or adoption

Inder Raj Malik vs Mrs Sumita malik

1986 Cr.lJ
It was argued that this section is ultra vires Art. 14
and 20 (2) of the Constitution
There is Dowry Prohibition Act which also deals with
similar types of cases , therefore both statute
together create a situation of Double Jeopardy
Held: sec 498 A is distinguishable from sec 4 of the
Dowry Prohibition Act because in this Act only
demand of Dowry is punishable and cruelty is not
necessary whereas sec 498 A deals with
aggravated form of the offence it punish such
type of demand has been made with cruelty.

Kaliaperumal vs state of Tamilnadu

2003 Cr.LJ
Cruelty is common essential of offences under sec 304 B and
498 A of IPC
Two Sections are not mutually inclusive but both are distinct
offence and a person acquitted under sec. 304 B for the
offence of dowry death can be convicted for an offence
under sec 498 A of IPC
The meaning of cruelty is given in explanation to sec 498 A .
Sec. 304 B does not contain its meaning but the meaning of
cruelty as given in 498 A applies in section 304 B
Under Sec 498 A cruelty by itself is an offence whereas under
sec 304 B the offence is that of dowry death and death
must be occurred in within the seven years of marriage but
in sec 498 A such time limit is not required.

Sankar Prasad Shaw vs State 1991

Cr LJ(Cal)
Held: mere demand of dowry may not be an
offence under section 4 of the Dowry
Prohibition Act but it is an offence under sec
498 A of IPC
For an offence under DP Act dowry should either
be given or agreed to be given but sec 498 A
covers even mere demand for dowry

Ramesh Chand vs State of UP 1992

Cr.LJ (ALL)
Held: that a complaint under section 498 A
could succeed only if it can be proved that
there was an unlawful demand by the
husband of some money.

Sec 304 B
Where the death of woman is caused by any
burns or bodily injury or otherwise than
under normal circumstances within the
seven year of her marriage and it is shown
that soon before her death she was
subjected to cruelty or harassment by her
husband or relative of him for or in connection
with any demand for dowry such death shall
be called Dowry Death
Punishment : not less than seven years but may
extend to imprisonment for life.

Constitutional validity
the husband and the relative of husband of a
married woman form a class apart by
themselves and its amounts to reasonable
classification especially when a married
woman is treated with cruelty within the four
walls of her husbands house
So it is not the violation of Art 14