Tag: #Section375

–Report by Monishka Allahbadi

Kerala High Court rejected a bail application in MONSON MAVUNKAL V. STATE OF KERALA & ANR considering the gravity of the accusations against him and his criminal record. Justice Bechu Kurian Thomas ruled that the prosecution’s worries that the accused would influence victims and witnesses and tamper with the evidence were justified and that his release on bail could hurt the prosecution’s case.

The prosecution has filed that the victim, in this case, had been raped by the petitioner. The victim who was a staff of the accused was raped on different dates from 11th January 2020 to 24th September 2021 in the house of the petitioner.

The petitioner contended that he has been in custody for a long period of time and the case of rape cannot be prima facie made against him. There can be a possibility of consensual sex. It was further contended that the victim was questioned earlier regarding the petitioner before even registration of the rape case, during which the victim did not mention anything about rape. This conduct shows falsity in the survivor’s case.

The prosecution opposed the bail application by saying that the nature of the offense is serious and that on release, the petitioner can influence the victim as well as witnesses. The witnesses, in this case, are the mother and brother of the victim who was also employees of the petitioner.

The court observed that although the contentions of the petitioner can be appreciated the fact that the petitioner was admittedly involved in several crimes, including three rape instances cannot be ignored. A Trial for raping a minor is already underway. The said minor has also been alleged to be raped even after turning 18, and this crime is connected to the alleged obnoxious behavior. The court found merit in the arguments of the prosecution. The court observed:
“The criminal antecedents of the petitioner also stare against him in granting bail. Several cases are alleged to have
been committed by him and therefore, such antecedents cannot be ignored while considering the application for bail.”

The court further relied on the case of P.Chidambaram v. Directorate of Enforcement [(2020) 13 SCC 791] and Prahlad Singh Bhati v. NCT, Delhi and Another [(2001) 4 SCC 280], wherein it has been held that each case has to be decided based on the circumstances of the case. The circumstances, in this case, lean against the petitioner and it was observed:

“There is no hard and fast rule regarding grant or refusal to grant bail. Each case has to be considered on the facts and
circumstances of each case and on its own merits. The discretion of the court has to be exercised judiciously and not in an arbitrary manner. The nature of accusation and the severity of the punishment, apprehension of the prosecution about influencing the witnesses, the circumstances that are peculiar to the accused and the larger interest of the public all lean against the grant of bail to the petitioner.“

The bail was denied as there was no merit in the application.

ABSTRACT

The article seeks to discuss and elaborate on the crimes committed against women through the lens of the Indian Penal Code.

INTRODUCTION

Indian Penal Code is a comprehensive code that integrates and codifies the criminal law of India. The Code prescribes punishment for offenses committed within India. IPC was basically the brainchild of the English government. The first law commission of India¹, which was established by the Charter Act of 1833, steered the drafting of IPC, under the tutelage of Thomas Macaulay in 1834. The drafting of the code was completed in 1850 and was presented to the Imperial Legislative Council in 1856 which was ultimately enacted by the Imperial Council on 6th October 1860. The Criminal Code was initially enforced only upon selected Indian States. However, after the Independence of India, the ambit of the act was gradually widened and it covered the entire Indian territory except for the State of Jammu and Kashmir, wherein, after the Jammu and Kashmir Reorganization Act 2019, the IPC came into force. The IPC is divided into 23 chapters, spanning 511 exhaustive sections. Each Chapter of IPC deals with a separate category of offense in the most elaborative and fastidious fashion.

Women are the building blocks of any society. They are synonymous with empathy, motherhood, empowerment, and development. However, like the men and children and other sections of society, the women too need the constitutional and legislative safeguard to protect their interests. Women, as a quintessential section of Indian society, have been vulnerable to myriad crimes. The patriarchal mindset of Indian society coupled with inequity and physical fragility, have jeopardized the interests of women.

IPC serves as an effective tool to serve the interests of all the sections of the society, especially the women, and thereby in that furtherance, categorically lays down descriptive code to punish the people for their crimes. It addresses some of the most rudimentary and fundamental issues concerning the safety of women in everyday life in length and breadth.

PROVISIONS OF IPC THAT DEAL WITH CRIME AGAINST WOMEN²

In order to proceed further, it is to be noted that Section 10 of IPC describes ‘women’ as female human beings of any age group.

1. OFFENCES AFFECTING LIFE

• Section 304B of IPC: Dowry Death.
  It prescribes that if the death of a woman is caused within 7 years of marriage due to bodily injury or burns and it could be shown that soon before her death she was subjected to cruelty by her husband or his relative, then such death would be deemed as dowry death and the punishment for the same would be imprisonment for a minimum term of 7 years, which could be extended to imprisonment for life.

2. OFFENCES INVOLVING MISCARRIAGE AND INJURY TO THE UNBORN BABIES

• Section 313:
  Miscarriage without Consent: Causation of miscarriage of a woman without her consent and good faith is punishable with a term of up to 10 years or with a fine, or both
• Section 315:
  Any act done explicitly and not done in good faith, leading to the death of a child after birth or preventing it from being born alive is punishable with a term of up to 10 years and a fine.

3. OFFENCES CAUSING HURT

• 326A: Voluntary Causing Of Hurt With The Use Of Acid
  Voluntary causation of grievous hurt by throwing/administering acid, that leads to permanent or partial deformity/ damage to any body part of the victim is punishable with a minimum term of 10 years which could extend up to life imprisonment and with fine
• 326B: Attempting To Throw Acid
  Any attempt to throw or administer acid to any person leading to permanent or partial deformity of any body part is punishable with a term ranging from 5 to 7 years and with a fine.

4. OFFENCES INVOLVING USE OF CRIMINAL FORCE AND ASSAULT

• Section 354: Outraging Modesty Of Women
  Intentional use of criminal force (assault) to outrage or likely to outrage the modesty of women is punishable with a term not less than 1 year, which may extend up to 5 years, and a fine.
• Section 354A: Sexual Harassment Of Woman
  Sexual harassment of women by physically touching her, making sexually colorable remarks/ expressions, showing pornography against her will, demanding sexual favors is punishable with a term ranging from 1 year to 3 years or fine or both.
• Section 354B: Use Of Force To Disrobe Women
  Use of criminal force to disrobe a woman or compel her to be naked is punishable with a term ranging from years to 7 years or fine or both.
• Section 354C: Punishment For Voyeurism
  To capture an image or watch women engaging in the private act where women would reasonably expect privacy is a punishable offense wherein the offender is liable with a term of up to 3 years of fine or both.
• Section 354D: Punishment For Stalking A Woman
  Stalking a woman by contacting or following her, or attempting to develop personal interaction against the will of the woman, except in cases of discharging legal or public duty, is punishable with a term of up to 3 years and a fine, which may extend up to 5 years.

5. OFFENCES RELATED TO ABDUCTION/KIDNAPPING

• Section 366A and Section 366B
  Both these sections deal with the procuration of a minor girl under the age of 18 years from any part of India or abroad respectively for the purpose of forcing her into illicit intercourse with another person is punishable for a term of up to 10 years and with a fine.
• Section 370
  Trafficking of a person by means of force, fraud, abduction, inducement, threat, or force for the purpose of exploitation of the victim with or without its consent is punishable for a term ranging from 7 years up to life imprisonment along with a fine, depending upon the grievousness of the situation and crime.
• Section 372 and Section 373
  Selling and buying of minors respectively for the purposes of above Sections, under the age of 18 years for the purpose of prostitution is punishable with imprisonment for a term of up to 10 years and fine.

6. OFFENCES INVOLVING SEXUAL CRIMES

• Section 375: Definition Of Rape
  This section defines rape. Rape is committed if a man applies his mouth or penetrates his penis/ any object or into mouth, vagina, urethra, or anus; or manipulates any body part of a woman so as to facilitate penetration against the will of the woman or with her consent by coercing/ putting her under fear/ deceiving her to be her lawful husband or under intoxication or when she is under 18 years of age.
• Section 376: Punishment For Rape
  Rape is punishable with a minimum term of at least 10 years and with a fine that may extend up to life imprisonment. Rape by police officers, public servants, members of armed forces, jail staffs, hospital staff, staff of remand home, persons exercising fiduciary relationship, is punishable with rigorous imprisonment of five to ten years, extending to imprisonment for natural life along with fine.
• Section 376A: Punishment For Rape Resulting In Death
  This Section deals with punishment for causing death or persistently vegetative state of the victim due to rape. The offender will be liable with imprisonment of a minimum of 20 years which shall extend up to life imprisonment or even with death.
• Section 376AB
  Raping a woman under 12 years of age shall result in imprisonment of at least 20 years and with a fine, which may extend up to life imprisonment or with death.
• Section 376B
  Rape by husband upon his wife during the period of the decree of separation shall be punished with a term of at least 2 years, extendable up to 7 years, and with a fine.
• Section 376C
  Rape committed by people in authority, public servants, or by those in a fiduciary relationship, or by management of a hospital or by jail staff, shall be liable to be punished with imprisonment of a minimum of 5 years, which may extend up to 10 years, and with fine.
• Section 376D: Prescribes Punishment For Gangrape
  Rape committed by two or more men acting in furtherance of common intention shall be punishable with imprisonment of not less than 20 years which may extend up to life imprisonment.
• Section 376DA
  Rape of girls under sixteen years of age is punishable with imprisonment of a minimum of twenty years extending to imprisonment for natural life along with a fine.
• Section 376E: Prescribes Punishment For Repeat Offenders
  A person committing rape, who has been previously convicted of rape under Section 376, 376A-D, shall be punishable with imprisonment of life.

8. OFFENCES INVOLVING COMMITMENT OF CRUELTY BY HUSBAND UPON HIS WIFE

• Section 498A
  Cruelty includes the acts of harassment by the husband or his relative that is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb, or health; or any unlawful demand for any property or valuable security. The husband or his relative who subjects such women to cruelty shall be punished with imprisonment for a term which may extend to three years and with a fine.

CONCLUSION

Even in this 21st century, where the technological advancements and the cogent changes in the perception of the moral standards of Indian society have revolutionized our way of life, women continue to be subjected to multitudes of crimes every day. IPC as a criminal code provides the basic framework for legislative penal actions. It serves as a foundation and paves way for the introduction and enactment of specific women-centric legislative pieces to exhaustively address the issues of women and chalk out the way forward.

References:

1. Historical Introduction to IPC (PDF)
2. https://legislative.gov.in/sites/default/files/A1860-45.pdf

This article is written by Riya Ganguly, 2 nd year BBA LLB student at Bharati Vidyapeeth New Law College, Pune.

During the proceeding of a matter, Kerala High Court on Monday while interpreting Section 375 of IPC stated as to when the body of the Victim is manipulated to simulate a sensation similar to penetration of an orifice, then such act also leads to the offense of rape.

The above Judgment was made while deciding a matter wherein a minor child stated that his neighbor had sexually assaulted her on various occasions for six months. The offense not only attracts section 375 of IPC but also an offense under the protection of Children from Sexual Offences Act, 2012.

The offense was registered and the Trial Court after the evaluation of the entire matter has found the accused guilty and was sentenced. So the accused moved to the High Court stating that the victim has not proofed her age and also as per the definition of rape stated in IPC states rape happens when any accused penetrate his penis into the Vagina, mouth, Urethra, or anus of women but in the present case the accused is been accused of inserting the penis between the thighs of the victim does not amounts to rape.

After the appeal in the Kerala High Court, the difficulty faced by the High Court was in solving the problem that has been arrived before the bench whether the act to accused will be considered as rape or not. The further solved this problem and interpreted the definition of rape by stating the accused had committed the offense of rape as he had done the penetrative sexual act between the thighs of the victim to obtain sexual gratification which amounts to rape.

-Report by RIDDHI DUBEY