Opinion Based Blog

Section 376 : Criminal Justice and Sexual Harassment

section 376 ipc

Author: Sharanya Chakraborty, 1st year student at S.N Law College, Calcutta University.

Introduction

Section 376 of the IPC is Rape. This section provides whoever person commits rape will be punished with imprisonment for a term of 10 years which can also extend and lead to life imprisonment. The person can also be liable for a fine. Section 376 of IPC Rape is a non bailable offence. If a husband rapes his wife who is above 12 years of age, will be liable for a fine or two years of imprisonment or both. The court may mention the special reasons in its judgement where the term of imprisonment will be less than 7 years.

If a police officer commits rape during his duty within the police station or any station house where he is appointed, or commits rape to any women in the custody taking advantage of his powerful position will be entitled to imprisonment for a term of 10 years which may extend to life imprisonment.

Section 376 also describes:

  • If a hospital management staff commits rape on a women knowing her to be pregnant,or commits rape to any women or children in the jail or remand home or commits rape to a girl who is under 12 years of age will be punished rigorous for a term of 10 years or more and extend to life imprisonment.
  • Even if a person commits gang rape will be rigorously punishment with life imprisonment or for 10 years also liable to fine. Sometimes with adequate reasons, the court may reduce the term of 10 years to less depending upon the situation. When a girl is gang raped, each of the person’s intention there committing rape shall be noticed which will be a reason to justify the terms of imprisonment or punishment.

Rajudan Gemardan Charan vs The State Of Maharashtra[1],

 Facts of the Case- The victim lived in a hut with her father who was a cobbler and her brother Krushna. Krushna’s friend used to visit them sometimes. His friend was the accused. One day the daughter who was the victim went behind the hut as she had nature’s call. Krushna’s friend who was accused went behind her and grabbed her tight. He grabbed her mouth and told her to open her clothes. When she refused, the accused torn her clothes and sexually assaulted her. He also gave a threat that if she discloses the fact, the accused would kill her and her family. The accused again committed sexual assault after 2 days and then after 8 days. The girl kept mum out of dear and did not say this to anyone. During investigation, the victim was found pregnant and she has no menstruation from the last 4 months.

Judgement given by the court against the Criminal

  • The accused was imprisoned for a term of 10 years and liable to pay a fine of Rs 2000/- for 15 days under Section 376(2)(i ) and 376(2)(n) of the IPC.
  • Liable to pay a fine of Rs 1000 for 7 days under Section 4 of POCSO act.
  • He was also imprisoned for 6 months under Section 3(1)(w)(i) of the Atrocities Act and liable to pay a fine of Rs 1000 for seven days.
  • Under Section 3 (2)(va) of the Atrocities Act, he was punished for a term of 1 year with rigorous imprisonment.

Sexual Assault and Harrasment: Section 375 and Section 376

Different sub sections and sections have been introduced under Section 376. Section 376 C deals with sexual intercourse by any person in authority. It means if a person abuses or seduces any women in his authority or have sexual intercourse will not amount to rape offence but given a punishment for a period of 4 years which can also extend to 10 years and liable to pay fine. It criminalises the abuse of the sections under the person’s custody or authority which means a public servant, jail, remand home or hospital staff. This was amended in 2013 and this provision came up after the 2012 Delhi Gang Rape case. According to the courts, sexual assault means when a man puts his penis into the vagina of the women or uretha, or when he puts his something else into the vagina or uterus. It also means when the male manipulates the body of the women or any girl. Sexual assault can also mean when a person touches private parts of the girl or forces her to do something.

It is a type of harassment which involves sexual overtones, inappropriate touch and asking something in return for sexual favours. This is very much illegal.

Sexual Harassment means where a girl is forced to touch a man’s genitals, getting repeated sex requests or touching her bottom and legs. Sexual Harassment does mean only physical, it can be verbal as well as online harrasment also.

For example- There have been cases where the boss asked for sexual favours and in return he would make the employee’s promotion. This is also known as quid pro quo sexual harassment. This violates the Civil Rights Act of 1964.

Punishment

The rapist or the person who is responsible for sexual harassment will be punished rigorously for a period of 10 years or more. He will also be liable to pay a fine for a consecutive number of days. His term of imprisonment can also extend to life imprisonment for his whole neutral life . Not only this, there is also a rigorous imprisonment for a term of 20 years under Atrocities Act or less and also lead to life imprisonment with fine.

If the person commits sexual intercourse or harassment to someone, then the term of imprisonment would be 2-7 years with fine under Section 376 B.

Criminal Justice and Community Response to Section 376 – Expectation from Criminal Justice System

  • Investigation occurs and then press charges. It is totally up to the state to call on press charges. The prosecutor moves through the available evidence only.
  • There are 10,000 instances of rap cases. There might be lack of evidence, perpetrators or many factors. Out of that, 15-17 cases go to the prosecutor and 8-9 cases lead to felony conviction.
  • Now the question comes what happens after press charges? Sometimes the cases get resolved through plea bargain. If the case does not reach trial, then it will stay in the criminal court and is generally said to testify. A new law has come called “rape shield law” which asks the victim about her sexual history she has gone through. The prosecutor can prevent the victim from disclosing any other personal information.
Importance of DNA in a Sexual Case or Rape Case

DNA evidence is a very important tool which investigators look into to justify a case. It is a very strong thing which can either break an outcome or make it. A sexual assault forensic exam is essential in a rape crime or sexual case. It helps in identifying the perpetrator amongst large profiles by Codis and DNA index system. It holds the perpetrator account with proper DNA evidence and also press charges in court. It also prevents any other further sexual assaults or crimes from occurring.

Elaborating, DNA test is something which is found in the cells of the victim like eye, hair and skin colour. It can be collected from sweat, urine, blood. It accurately identifies the accused in the case. That is why it is always said to not bath, wash, clean yourself or urinate in a forensic exam. DNA is also found in the body or clothes of the person who has been harassed. DNA should be collected within 72 hours prior to the actual case occurring.

Very Important Case Judgements

  • Nirbhaya Rape Case[2]

This is a very important case which took place in Delhi, 2012. A 23 year old girl Jyoti Singh who was a paramedic student was travelling in a bus. She was with her male friend. The case took place on the night of 29th December. She was brutally gangraped, beaten and tortured by seven members of the bus including the driver. A rod was inserted into her vagina and then she was thrown out of the private bus. Her male friend was also beaten. She underwent the best treatment. After 11 days she was taken to Mount Hospital Singapore. She tried to stay strong but after 2 days she took her last breath. This incident became so widespread in both national and international levels. Public protests and rallies were organised. People protested against the government and security forces as they failed to provide proper and adequate support to that girl in New Delhi. The girl was so brave and courageous that she was named “Nirbhaya” meaning fearless. She later became a symbol of women resistance and power to rape all around the world.

Among all the seven rapists, the juvenile was given a term of imprisonment for up to 3 years under the Juvenile Justice Act and later left. They were all accused of murder charges and rape. One of the rapist died in police custody and the rest all were hanged to death in March 2020. As a result of repeated protests, different public suggestions were taken from all the people by the judicial committee and new laws were decided for quicker investment and prosecution of sex offenders. Amongst all the suggestions, the Supreme court found that it was the failure and fault on the part of the government who did not take proper measures for crime against women and hence was liable.

  • Mumbai Gang Rape- Shakti Mills Gang Rape 2013[3]

This case is also very important and widespread. A 22 years old, one day went to shakti mills in Mumbai to do research as she was a photojournalist. She was gang-raped by 5 men, in which one of them was a juvenile. She was very brutally raped. The rapist took naked photos of her while sexual assault and rape and threatened her that he would viral the photos and put it in the internet. Later, a call centre employee reported that case saying that she has also been raped by a gang here inside the mills. A male friend was also there with the 22 years old girl. He was also tied with belts and raped. He suffered serious injuries and was gang raped. In 2014, these rapists were caught for 13 rape cases till now. Amongst these 5 rapists, there were two minors. Other three rapists were hanged to death. Both the minors were sentenced to three years of imprisonment and were tried by the Juvenile Justice Board. This is the maximum punishment under law given to a minor or juvenile even if they perform 13 rapes or thousand rapes. This law should be changed. They are equally entitled to life imprisonment or hanged to death.

Conclusion

Rape is a very dangerous crime. In Spite of taking precautions, in spite of these laws which exists, there has been so many rape cases going on throughout. Rape can destroy a women’s life, her mental health, family and her career and her future. I would like to emphasize the courts and the higher authority to come up with strict penal actions and laws for the rapist. No one should be given less punishment on the basis of their age. If a juvenile or minor know the concept of rape, if his mind behaves like an adult and if he is raping vigorous, the question arises why he will be treated as a juvenile under the eyes of law? This should be changed. I strongly oppose this thing of treating a minor or a juvenile and giving less punishment in spite of raping 3-4 times. This cycle must absolutely stop and more laws should come up.


Reference

[1] CRIMINAL APPEAL NO.90 OF 2016.

[2] (2017) 6 SCC 1

[3] C.R.No.18 of 2014

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