INTRODUCTION:

Rape is the maximum heinous offence in opposition to women. It is an insult to the civility. It is symptomatic of sexually starved society that has injuriously threatened and nonetheless threatening the ladies’ very proper to liberty and persona. Women are being rapped at paintings, on the streets, inside the area, inside the scheduled places, of their houses via guys. They are raped via people who are their household or buddies’ or maybe via strangers. From decrease degree to the upper strata ladies are being raped by means of guys even on this 21st century. Doctors rape their patients and nurses. The employers molest domestic maidservants; manufacturing facility people are compelled to have sexual relations with their in-fee/Head. Castes Hindus rape Harijans and Adivasi girls.

Gang Rape means whilst a set of people participate in the rape of an unmarried sufferer. Rape involving at least or more violators is said throughout the world. It is described in Section 376- D and 375 of Indian Penal Code, 1872. Gang rapes by using dacoits, rape all through communal riots is pretty commonplace. Another frightening incidence of rape, which the present day Indian society is witnessing, is the rape of teen women. Again the rape by way of custodian of regulation, specifically the police are very common. Hardly a day passes a day without record in the newspaper or a magazine of a rape, assault or molestation having taken region both inside the rural and urban areas.

The present bankruptcy consequently very well specializes in the offence of rape and Gang Rape where attention is made on Gang Rape and its fashion in judicial choices and statutory legal guidelines.

RELATION AND DISTINCTION BETWEEN GANG RAPE AND RAPE:

The offence of rape and gang rape are punishable under the Indian Penal Code and separate punishment has been provided for them. A gang rape is committed by more than one person on a woman while a rape is committed by one man. The punishment provided for the offences of rape are defined under S. 376 of IPC[1] as follows:

(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

(2) Whoever,—

1. being a police officer commits rape—
2. within the limits of the police station to which he is ap­pointed; or
3. in the premises of any station house whether or not situated in the police station to which he is appointed; or on a woman in his custody or in the custody of a police officer subordinate to him; or

1. being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
2. being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s insti­tution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
3. being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
4. commits rape on a woman knowing her to be pregnant; or
5. commits rape on a woman when she is under twelve years of age; or
6. commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Explanation 1.—where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.

Explanation 2.—“Women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected woman or children or a widows’ home or by any other name, which is established and maintained for the reception and care of woman or children.

Explanation 3.—“Hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.]

If any other person commits rape on any woman, he shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.

Whereas, Gang Rape is defined under Section 376D[2] which prescribes punishment for gang rape and says where a woman is raped by a group of persons, then they shall be punishable with rigorous punishment of not less than 20 years, but may extend to life imprisonment, and with fine.

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this section shall be paid to the victim.[3]

OFFENCE OF GANG RAPE: A JUDICIAL TREND:

Judiciary has performed a vital function in protective the rights of the women and have tried to interpret laws in consonance with international treaties and Conventions.

Till 2002, the judiciary changed into no longer so proactive in convicting the rapists and the sexual history of the ladies become the number one element considered whilst the decision became given. The identical became contemplated whilst the Hon’ble Supreme Court acquitted the accused primarily based upon the sexual records of the victim in the Mathura Case. The court docket presumed that the sufferer gave her consent due to the fact she changed into recurring of the sexual sex and the vagina of the sufferer could admit two-fingers very easily.[4]

But because of great protests and open letter to the Supreme Court with the aid of some intellectuals, led to a modification within the Criminal Act. This change stated that if a victim says that she did now not supply the consent, then the Court shall count on the equal.

How the quantum of punishment is decided in gang rape cases?

Capital punishment in cases of Gang rape:

1. Shakti Mills Gang Rape case[5]:

On August 22, 2013, the photojournalist had gone to Shakti Mills with a male colleague on a venture. The accused to start with provided to help them but later accused them of trespassing on railway belongings. They then tied up the male colleague and gang-raped the young lady. They claimed they had taken pictures of the sufferer and might make them public if she complained. Two weeks after the incident, the telephone operator came ahead and registered a case against 4 guys for gang raping her in July 2013. Three of the men were commonplace to the photojournalist’s rape. The cellphone operator had long gone there along with her boyfriend, who changed into also tied up when she became violated.

The 4 convicts who have been awarded a life time imprisonment incudes Vijay Jadhav, Qasim Sheikh Alias Bengali, Salim Ansari and Mohammad Ashfak Shaikh. The session’s court convicted them on 13 counts, inclusive of gang rape, destruction of proof, criminal conspiracy of the IPC and positive Sections of the Information Technology (IT) Act. The fifth accused, a minor in the telephone operator gang rape case, is being tried by the Juvenile Justice Board.

The court in this case also charged the fifth accused with S. 376E of IPC. Under this section a repeat offender can be sentenced to imprisonment for the remainder of the natural life or death.

2. The Nirbhaya Gang Rape case[6]:

This case hardly calls for any information to be stated as it is still fresh inside the awareness of the kingdom. A paramedical student changed into tortured via six guys to such an extent that an iron rod turned into shoved into her vagina and her intestines, stomach, and genitals had been broken severely. They threw her out of the bus within the wintery night. Nirbhaya gang rape case was one of the ‘rarest of rare cases’ which was disturbing at so many levels that it’s still etched on our minds

The Supreme Court in this case decided that the juvenile was sent to a correction home and has been released since. One of the accused committed suicide in the jail and the four others were sentenced to death in 2013.

Life imprisonment in cases of Gang rape:

1. Mohan lal and Anr. V. State of Punjab[7]:

A student become forcibly raped via her teachers such as the Director of Education of Punjab state. The trial court imposed 10 years of imprisonment at the accused and fine of Rs.2, 000/- and Rs.3, 000/- respectively, and in default of payment of nice, to undergo in addition rigorous imprisonment for three hundred and sixty five days and 6 months respectively. But an appeal was made by the accused. The Supreme Court while agreeing with the trial court stated that so far as the conviction is concerned, as it was a case of gang rape by teachers of their student, the punishment of 10 years rigorous imprisonment imposed by the trial court is shocking, considering the relationship between the parties. It was a fit case where life imprisonment could have been awarded to all the accused persons.

Punishment for less than 20 years in cases of Gang rape:

1. Baldev Singh & Ors. V. State Of Punjab[8]:

The prosecutrix was gang raped and beaten by the accused when she was going to her house. All the three appellants were convicted and sentenced to 10 years rigorous imprisonment. The High Court upheld the sentence. The appellants had already gone for 2 years imprisonment. The accused and prosecutrix and the appellant are married (not to each other) and the prosecutrix has two children also. The incident is now 14 years old and it was stated before the court that both the parties have entered into a compromise. Therefore, the accused should be acquitted. The apex took all the above listed factors into consideration and reduced the sentence of the accused to that much which the accused had already undergone.

In this case, the sentence awarded by the court was less than the punishment prescribed in the Section 376 of IPC.

2. Shimbhu & Anr v. State Of Haryana[9]:

The victim in this present case was gang raped by the accused. The Additional Sessions Judge convicted the accused and awarded them 10 years rigorous imprisonment. The High Court upholded the same. The accused filed an appeal and the learned counsel on behalf of the appellant contended that the accused should be awarded lesser punishment as there has been a compromise between the parties. But the court rejected these contentions and held that rape is a non-compoundable offence and cannot be considered a leading factor in reducing the punishment. Because there might be a possibility that the victim has been pressurized for the compromise. By the Criminal Law Amendment, 2013, the proviso which said that in exceptional circumstances, the punishment may be reduced, has been deleted in the wake of the rising of crimes against women. Though this deletion does not affect the discretionary powers given to the judiciary.

The court has warned the subordinate courts and the High Court again and again in the words:

This is yet another opportunity to inform the subordinate Courts and the High Courts that despite stringent provisions for rape under Section 376 IPC, many Courts in the past have taken a softer view while awarding sentence for such a heinous crime. This Court has in the past noticed that few subordinate and High Courts have reduced the sentence of the accused to the period already undergone to suffice as the punishment, by taking aid of the proviso to Section 376(2) IPC. The above trend exhibits stark insensitivity to the need for proportionate punishments to be imposed in such cases.[10]

OFFENCE OF GANG RAPE: A STATUTORY TREND

Statutory Rape is described in Section 375 of Indian Penal Code, (amendment of 2013) which states that “any male, who does an intercourse with any female who is under the age of 18, with or without her consent might be constituting a Statutory Rape”. This offence is created to shop the exploitation of the minor with the aid of the adults. In this type of rape, the grownup gets punished if he had any type of bodily interplay with a woman/girl, within the age of  18 or underneath, no matter if she has voluntarily participated in the act or not. The consent of the minor is immaterial and will now not be considered any defense to the accused.

The Protection of Children against Sexual Offences Act, 2012 was passed by both the Houses of Parliament on May 22. This Act aims to define various offences against the minor/children to provide penalties to them.  Before this Act was passed, the age of consent was 16 years of age. As the new Act came into force the exploitation of children will reduce at some extent.[11]

Key Points of Statutory offence:

• The Statute for this offence is The Protection of Children in opposition to Sexual offences Act, 2012 (POCSO) however it is regulated by way of the Section 375 of IPC.
• This Act regulates the exploitation in opposition to the youngsters via the adults,
• The consent is immaterial of the sufferer in those kind of offences,
• This offence includes punishment beneath Section 376 of IPC

Discussed below are 2 major reforms in the sexual intercourse (Gang Rape) laws in the country:

• The Protection of Children in opposition to Sexual offences Act, 2012:

Commonly referred to as POSCO, this act received the President’s assent on June 19, 2012 and turned into gazette at the very next day. It was designed to defend the youngsters from offences of sexual attack, sexual harassment and on the identical time offer for courts to facilitate trial of such instances. There arose a need to bypass a specific act for children as they’re considered incapable of giving their consent and as a result inclined and liable to exploitation.

A Delhi district court has found that consensual sex with a lady aged below 18 years does not represent an offence below the Protection of Children from Sexual Offences Act. The courtroom said the provisions of POCSO Act propose that in which a bodily dating without the minor female’s consent or wherein the consent has been acquired unlawfully, simplest that might amount to against the law. Hence, consensual sex isn’t any offence.

• Criminal Law (Amendment) Act, 2013: Sexual Offences:

Owing to the sizable enragement over the tragic Delhi gang-rape case (Nirbhaya incident) of December 16, 2012, the Government of India sincerely saw the need to take a few drastic steps to pacify the multitude and decrease the rampant cases of violence in opposition to girls within the country. This incident shook the country to its very core and the state had by no means seen this kind of united the front towards the difficulty of rape and sexual attack. After the verdict of the case, there was a nation-wide demand for stricter laws on the subject matter. Consequently, in December, 2012, GOI constituted The Justice Verma Committee, a three-member committee headed by the former Chief Justice of India, Justice J.S. Verma to look into the issue.

The committee gave its report on matters relating to-Constitutionalism, Republicanism, and Gender Equality, Gender Justice and India’s Obligations under International Conventions, Rape and Sexual Assault, Sexual Harassment at the Workplace, Trafficking of Women and Children, Child Sexual Abuse and many more. Recommendations made by the committee are as follows:[12]

• Marital Rape should be criminalized under Section 375 of Indian Penal code and the exception regarding the same should be nullified.
• The word rape under Section 375 to be replaced by sexual assault.
• Two-finger test in case of rape was considered exploitative and hence should be immediately banned.
• Consent must be real and not it is vitiated by fear of injury, a misconception of fact. Also, it should not be given by a person who is of unsound mind, or intoxicated and hence is unable of understanding the repercussions of the consent. The consent of a person below 12 years of age is also considered no consent.
• Section 160 of the CrPC has been amended to require the statement of female victims of sexual assault under the age of 12 to be recorded by a woman police officer.
• It also laid down stricter provisions for filing of police complaints and the conduct of the officers.

After this the government makes certain amendments and passed the Criminal law (amendment) Bill, 2013 and makes amendments into various acts like CrPC, Indian Evidence Act, IPC, POCSO.

• Modifications to Indian Penal Code, 1860:

• Inserted sections 354A and 354B dealing with Assault or use of criminal force against women.
• The punishment for rape beneath IPC was better. Initially, wrongdoer might be responsible for rigorous imprisonment of at least seven years up to lifestyles imprisonment, together with first-class. Now, the minimal imprisonment has been multiplied from seven years to ten years.
• Rape under Section 375 of Indian Penal Code earlier included just the vaginal penetration. However, with coming up of the act, the ambit of rape was widened to include more extensive physical acts. In addition to vaginal penetration, it sought to include the following acts done by a person or if the person makes someone else do such acts to amount to rape[13]–

1. Penetration of penis into vagina, urethra, mouth or anus.
2. Insertion of any object or any body part, not being penis, into vagina, urethra, mouth or anus.
3. Manipulation of any body part so as to cause penetration of vagina, urethra, mouth or anus or any body part.
4. Application of mouth to the penis, vagina, anus, urethra.
5. Touching the vagina, penis, anus or breast.

• Modifications to code of Criminal Procedure Code, 1980:
  

• A woman against whom any such offence has been committed or attempted shall be recorded, by a woman police officer or any woman officer under Section 161 of CrPC.
• According to the provisions of CrPC, 1980, the most time for final touch of investigation became months. This Ordinance decreases the time from 3 to two months.
• Also, an appeal in case of any rape case has to necessarily be disposed of inside six months.
• No anticipatory bail to be granted to the alleged offenders accused of sexual assault towards minor women under the age of 12 and sixteen.

• Modifications in POCSO Act:
  

• The age of a child became reduced from 18 years to 16 years beneath Section 2(d) of POCSO Act.
• Punishment for rape below the act was expanded from 7 years imprisonment and fine to 10 years imprisonment and first-rate.
• For Section forty two of the POCSO Act, it turned into held that where an act or omission constitutes an offence punishable under this Act and also underneath sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E, 509 of the Indian Penal Code, the wrongdoer shall be vulnerable to punishment under this Act or below the Indian Penal Code as provides for punishment that’s greater in degree.

• Modifications to Indian Evidence Act, 1872:
  

• Section 114A was introduced to the Indian Evidence Act, 1872 which stated that in instances where sexual sex by using the accused is proved and the query is whether or not it turned into without the consent of the woman speculated to were raped and such girl states in her evidence earlier than the courtroom that she did now not consent, the courtroom shall presume that she did not consent. The onus is at the accused to show that there was consent.
• Also, Section 146 of the Indian Evidence Act changed into amended to nation that questions of popular immoral individual or about previous sexual experience shall now not be requested and also, would not be admissible inside the court docket.

CAN A WOMEN BE CHARGED FOR GANG RAPE?

The query itself looks so obnoxious. We are living in a society in which girl protection is one of the primary concerns for all and sundry. As consistent with NCRB (National Crime Records Bureau) annual report 2013 there has been 33,707 reported rape instances in India in comparison to 24,923 instances inside the previous 12 months. This fashion indicates that there was a full-size growth in rape cases regardless of so much misery and furor created aftermath the ghastly Delhi Rape case. As in step with facts, the conviction rate in rare instances is 27.1% (2013) that’s abysmally low. The low conviction price is due to different factors like sufferers relinquishing statements, put off in registering the FIR, defective research, inconsistencies and contradictions in the statements through witness, insensitive trial and grueling cross examination of victims.[14]

The issue, ‘whether a woman can commit rape’ is well settled by the non-ambiguous language of section 375 of IPC which expressly mentions that the act of rape can only be performed by a ‘man’ and not by “any person”. Thus a woman cannot commit rape. But there is perplexity regarding the commission of “gang rape” by women under section 376(2) (g) IPC. Unlike section 375, section 376(2) (g) talks about “Persons” rather than “man”, which signify that the law-makers intended to keep Sec. 376(2) (g) gender-neutral.[15]

Supreme Court was confronted with the same question, whether a women can be held guilty of Gang Rape in the case of Priya Patel vs. State of Madhya Pradesh[16]:

The Court in this case precisely held that the non-ambiguous language of section 375 of IPC expressly mentions that the act of rape can simplest be carried out via a ‘guy’ and no longer by using “any individual”. Thus a woman can’t commit rape. The court further dominated that a female can’t have an aim to rape, as its miles conceptually unbelievable and therefore, she will be able to neither be held for rape, nor gang-rape. The court similarly held that the expression “in furtherance of their common purpose” as appearing within the Explanation I to Section 376(2) IPC, relates to purpose to devote rape. A lady can’t be said to have an aim to dedicate rape. And therefore, a prosecution can’t be released against a woman for gang rape.

According to me, Priya Patel case is not a good precedent case law because recently, in case of State of Rajasthan vs. Hemraj having facts similar to Priya Patel, the Division bench of SC followed the Judgment pronounced in case of Priya Patel and acquitted Smt. Kamla only because she is a woman. The Supreme Court in Priya Patel case left many questions unearthed. The acquittal of appellant was prima facie wrong because of the following reason:

• The appellant slapped the prosecutrix, closed the door and left the place of incidence. This clearly suggests that she supported her husband’s act of raping the prosecutrix and is enough to determine the criminal intention possessed by Priya Patel.

Owing to very unusual nature of this example, Priya Patel hasn’t affected the Indian Criminal Jurisprudence, but the stated interpretation by way of the Judge in this example was contrary to the provisions of Gang rape. Section 375, solely absolves lady from Rape liability however on opposite phase 376(2) (g) consists of woman also. Though a female can’t be charged for committing rape because of the apparent purpose i.e. their incapacity to achieve this, however she will share the identical commonplace Intention and may be charged for commission of Gang Rape, due to the fact “They additionally serve who simplest stand and wait”. Priya Patel should be declared awful law, the earlier, the better, because of many essential mistakes within the judgment and until the, Priya Patel have to be dealt with as an aberration.[17]

CONCLUSIONS AND SUGGESTIONS:

To summarize, Sexual violence or rape violates the rights of the women and it interferes with the ladies’ ability to function as complete citizens. India has ratified the worldwide human rights treaties and is obliged to guard the rights of the ladies. In India the maximum current social motion became connected to rape. The new anti-rape law had provisions consisting of demise penalty for sure sexual violent offences which have been no longer welcomed by way of human rights companies such as Amnesty International. However, apart from the fact that it failed to meet the extent of global requirements, the main hassle with the brand new legislative reform changed into that it overlooks positive guidelines and the nation government failed to address the primary troubles on responsibility of the police and withdraw the criminal immunity enjoyed by way of the security forces. To conclude, the high prevalence of rape in India proves that the Indian government is vulnerable in promoting or fulfilling the human rights, specially the rights of the girls. As explained in the take a look at the intersection of the identities gender, magnificence and caste indicates that the police response towards rape instances in India isn’t regular.

[1] The Indian Penal Code, 1860.

[2] Supra. Note 1.

[3] Kanti, Judicial Stand on rape and gang rape – How the quantum of punishment is decided, ipleaders (13 Nov., 2018, 10:00 PM), https://blog.ipleaders.in/punishment-gang-rape-india/.

[4] Supra. Note 3.

[5] Sessions Case no. 846 of 2013.

[6] Criminal appeal no.607-608 of 2017.

[7] Criminal Appeal No.1880 of 2011.

[8] (2011) 13 SCC 705.

[9] (2014) 13 SCC 318.

[10] Kanti, Judicial Stand on rape and gang rape – How the quantum of punishment is decided, ipleaders (13 Nov., 2018, 10:00 PM), https://blog.ipleaders.in/punishment-gang-rape-india/.

[11]Anubhav Pandey, Statutory rape laws in India, ipleaders (13 Nov., 2018, 11:45 PM), https://blog.ipleaders.in/statutory-rape-laws-india/.

[12]Anubhav Pandey, Consent under Indian rape laws, ipleaders (14 Nov., 2018, 2:00 PM), https://blog.ipleaders.in/rape-laws-india/.

[13] Supra. Note 6.

[14]Guest Post, Can a women be charged for Gang Rape? Ipleaders (14 Nov. 2018, 9:00 PM), https://blog.ipleaders.in/can-woman-charged-gang-rape/.

[15] Ibid.

[16] AIR 2006 SC 2639.

[17] Supra. Note 8.

• REFERENCES:

1. Human Rights Watch, 2012. India: Rape Victim’s Death Demands Action. (29 Dec 2012). Available at: http://www.hrw.org/news/2012/12/29/india-rape-victim-s-death-demandsaction [Accessed 14 Nov. 2018].
2. The Hindu, 2012. Delhi gang-rape: victim narrates the tale of horror. (Dec 23, 2012). Available at: http://www.thehindu.com/news/national/delhi-gangrape-victim-narrates-thetale-of-horror/article4230038.ece [Accessed 13 Nov. 2018].
3. The Times of India News, 2012. Rape fastest growing crime in the country. (Dec 27, 2012). Available at: [Accessed 10 Nov. 2018].
4. The Times of India, 2012. Delhi gang rape case: Rapists were out for a joyride on the night of incident, police say. (Dec 18, 2012). Available at: [Accessed 03 Nov. 2018].
5. Guest Post, Can a women be charged for Gang Rape? Ipleaders (14 Nov. 2018, 9:00 PM), https://blog.ipleaders.in/can-woman-charged-gang-rape/.
6. Anubhav Pandey, Consent under Indian rape laws, ipleaders (14 Nov., 2018, 2:00 PM), https://blog.ipleaders.in/rape-laws-india/.
7. Kanti, Judicial Stand on rape and gang rape – How the quantum of punishment is decided, ipleaders (13 Nov., 2018, 10:00 PM), https://blog.ipleaders.in/punishment-gang-rape-india/.Know more about women empowerment: https://legisnations.com/constitution-of-india-women-empowerment/
   https://legisnations.com/different-perspectives-of-justice-in/