1

Role Name Affiliation

Principal Investigator Prof. (Dr.) Ranbir Vice Chancellor, National
Singh Law University, Delhi
Co-Principal Investigator Prof. (Dr.) G.S. Bajpai Registrar, National Law
University, Delhi
Paper Coordinator Dr. Mrinal Satish & Associate Professor, National
Dr. Rangin Pallav Law University, Delhi;
Tripathi Assistant Professor, National
Law University Odisha.
Content Writer/Author Dr. Mrinal Satish Associate Professor, National
Law University, Delhi
Content Reviewer Prof. (Dr.) Srikrishna Vice Chancellor, National
Deva Rao Law University, Odisha

DESCRIPTION OF MODULE

Items Description of Module

Subject Name Law
Paper Name Substantive Criminal Law
Module Aggravated Rape
Name/Title
Module Id LAW/
Objectives Learning Outcome:

 To learn the history, rationale and

interpretation of aggravated rape provisions
in the IPC
 To discuss the new aggravated rape
provisions introduced by the Criminal Law
(Amendment) Act, 2013.
 To discuss stereotyping in rape, and analyse
the impact of stereotypes and rape myths on
rape adjudication
 To discuss issues relating to medical evidence
in rape cases
 To discuss the issue of sentencing in rape
cases

Prerequisites Knowledge of basic provisions of rape law

Key words Custodial Rape, Gang Rape, Death during commission

of Rape. Felony Murder, Rape Myths, Stereotypes,
Justice Verma Committee Report

2
Component – II – e-Text

1. INTRODUCTION
The provisions relating to aggravated rape were introduced into the Indian Penal Code by the
Criminal Law (Amendment) Act of 1983, which was enacted in response to rape law reform
movement post the decision of the Supreme Court in the Mathura case.1 Seven categories of
rape were considered aggravated, higher minimum punishments were prescribed, and
evidentiary rules were changed for aggravated rape cases. Changes were made again in 2013,
when the Criminal Law (Amendment) Act was enacted in response to the December 16 gang
rape-homicide incident in Delhi. The categories of cases where rape amounted to an
aggravated form was increased to fourteen, separate provisions were introduced for causing
death during an act of rape, and to deal with repeat offenders. In this module, we will discuss
these provisions relating to aggravated rape. We will also look at the issuing of proving rape,
focusing on the impact of stereotyping and rape myths on rape adjudication. We will also
briefly discuss sentencing in rape cases.
Criminal Law
(Amendment ) Act,
1983

Aggravated Rape

Criminal Law
(Amendment ) Act,
2013

2. HISTORY OF THE AGGRAVATED RAPE PROVISIONS – THE MATHURA AND PRATAP

MISRA CASES

2.1 Pratap Misra v. State of Orissa

Two cases decided by the Supreme Court in the late 1970s, led to major changes in the rape
law thereafter. The first was the decision of the Court in the case of Pratap Misra v. State of
Orissa.2 The case involved the gang rape of a 23 year old pregnant woman. The woman was

1
Tukaram v. State of Maharashtra, (1979) 2 SCC 143.
2
(1977) 3 SCC 41.

3
married to one, Bata Krishna Rout, who was already married at the time when he married the
prosecutrix. The High Court had described the woman was the “concubine” of Rout,
presumably disapproving of the bigamous relationship.3 Rout and the prosecturix, who was
five months pregnant at the time of the incident, had gone on a vacation to a wildlife park.
The Court noted that the prosecutrix had worked as a midwife with a doctor, a fact that
became relevant in its assessment of whether sexual intercourse was consensual or not. The
prosecution argued that the prosecutrix and her husband were in their room in the guest
house, when they were approached by a group of young men who were in the adjoining
room. The men asked the prosecutrix and her husband to open the door, which they refused to
do, since they were having dinner, and asked them to come later. A few minutes later, the
men returned and insisted that the door be opened. When it was, they dragged the husband
away and then took turns to rape the prosecutrix. The woman miscarried a few days later. The
prosecution argued that this was a result of the trauma suffered because of the rape.

The Supreme Court did not believe the version of the prosecutrix. The Court noticed that
there were no injuries on the body of the prosecutrix and on the private parts of the accused,
and observed that a woman will necessarily resist an attack on her. The absence of injuries
led the Court to conclude that the intercourse was consensual. They also noted that the
prosecutrix had the opportunity to close the door when the first accused left the room after
raping her. Since she had not done so, they doubted whether intercourse was actually non-
consensual. The other circumstances that led the Court to conclude that intercourse was
consensual were: First, that the prosecutrix had not complained about the rape to the officials
of the forest department who reached the spot; second, there were no semen stains on a towel
worn by the accused men; and thirdly, the absence of medical evidence. The Court also
observed that as a trained mid-wife the prosecutrix would have known how much resistance
she could put up without harming the foetus. They ultimately surmised that the case was
possibly one of consent, that intercourse was with the “tacit consent” of the prosecutrix and
the “connivance” of her husband.

This case indicated the various problems with rape adjudication. The Court took a moralistic
stand due to the fact that the prosecutrix was in a relationship with a married man – going to

3
(1977) 3 SCC 41, 42-43.

4
the extent of calling her a concubine. There was over-reliance on medical evidence – to the
extent that the Court tried to precisely estimate when the foetus would have been miscarried.
It did not take into consideration that the prosecutrix did not possibly resist because she was
pregnant and realised that any trauma might endanger the life of her unborn child.

2.2 Tukaram v. State of Maharashtra – The Mathura Case

Tukaram v. State of Maharashtra,4 involved the rape of a young woman in a police station.
Mathura, the prosecutrix in this case, had been called to the police station since a FIR for
kidnapping had been filed against the man whom she was in a relationship with. The
allegation was that two policemen who were posted at the station had sent Mathura’s
companions out of the station and one of them had raped her in the lavatory attached to the
station. The Sessions Court had acquitted the accused of the charge of rape. It mainly relied
on the medical report which had indicated that Mathura’s hymen was ruptured and that the
doctor had been able to insert two fingers into her vagina. On this basis, the Sessions Court
had concluded that Mathura was “habituated to intercourse.” It said that Mathura was a
“shocking liar” whose testimony was “riddled with falsehood and improbabilities.” It further
said that “there was a world of difference between sexual intercourse and rape.” The court
concluded that intercourse was consensual and in order to “sound virtuous” before her
“lover,” Mathura had alleged that she had been raped by Ganpat, the police constable. The
High Court, on the other hand, had believed Mathura’s version and had convicted the accused
for rape. It stated that the case was one of “passive submission” and did not involve consent.

The Supreme Court ruled that the case was not one of “passive submission” since Mathura
had not been subjected to any fear or compulsion. It was influenced by the fact that there
were no injuries on Mathura’s body. To the assertion that she had screamed which went
unheard, the Court termed this assertion as a “tissue of lies.” It reasoned that since her
relatives were present in the police station, Mathura’s “natural tendency” would have been to
shake off the effort made by the accused to hold her hand, and to scream even before the
incident occurred. Hence, the Court acquitted the men of the charges of rape. The Supreme
Court did not take into consideration the vulnerable situation that the girl was in when she
was summoned to the police station - the same station where criminal proceedings had been

4
(1979) 2 SCC 143.

5
initiated against the man she was in a relationship with. It did not consider the power-
differential between the policemen and her. On the other hand, the Court gave importance to
Mathura being sexually active, to the lack of injuries on her body, and to her not screaming.
Like in Pratap Misra, the Court did not appreciate the possible reasons because of which
Mathura did not resist, or the reason for not screaming, let alone the necessity for resisting or
screaming.

2.3 The Open Letter by Academics

In reaction to the decision of the Supreme Court in the Mathura case, a group of academics
(Prof. Upendra Baxi, Prof. Lotika Sarkar, Prof. Vasudha Dhagamwar, and Prof. Raghunath
Kelkar), wrote an open letter to the Chief Justice of India, seeking a re-hearing of the case by
a larger bench or the Full Court.5 The academics raised various pertinent issues relating to the
case. They asked the Court whether it expected a young girl “when trapped by two policemen
inside the police station, to successfully raise alarm for help?” They wondered why the Court
expected Mathura to put up stiff resistance, and why non-resistance should imply consent.
The open letter also drew the Court’s attention to its overreliance on Mathura’s sexual
history. Although the Supreme Court did not re-open and re-hear the case, the Open letter and
other efforts by academics, lawyers and members of civil society led to major amendments to
the Indian Penal Code in 1983.

3. THE AMENDMENTS OF 1983

The Criminal Law (Amendment) Act of 1983 introduced the offence of aggravated rape. It
introduced sections relating to custodial rape. If a police officer committed rape within the
limits of the police station in which he was appointed, or in the premises of a police station,
or on a woman in his or his subordinate’s custody, such rape was considered aggravated.
Similarly, if a public servant took advantage of his official position and committed rape on a
woman in his or his subordinate’s custody; if a man on the management of a jail, remand
home or any place of custody, or incharge of a woman’s or children’s home committed rape
on an inmate of such place of custody or home; if a man on the management or staff of a
hospital took advantage of his position and committed rape on a woman in the hospital; a
man committed rape on a woman knowing her to be pregnant; a man committed rape on a

5
Upendra Baxi et.al. An Open Letter to the Chief Justice of India, (1979) 4 SCC J-17.

6
girl under the age of twelve; a man committed gang rape, such rapes were considered to be
aggravated. A charge of aggravated rape would trigger a presumption under Section 114A of
the Indian Evidence Act, 1872.6 In a prosecution for aggravated rape, if sexual intercourse
was proved, and the woman testified that she did not consent, the Court presumes that the
intercourse was without the woman’s consent. This presumption and the amendments took
care of the Mathura type situations. In a Mathura-type situation, if the victim were to testify
(like the victim did in that case) that she did not consent to the intercourse, the court would
have to presume non-consent. Higher sentences were also provided for aggravated rape. A
minimum sentence of ten years was prescribed. A judge could impose a custodial sentence of
less than ten years only by providing “adequate and special reasons” for doing so. The
maximum punishment for aggravated rape was imprisonment for life.

4. THE 2013 AMENDMENTS

The Criminal Law (Amendment) Act expanded the scope of aggravated rape. The following
situations were added to aggravated rape:
(a) Rape by a member of the armed forces in an area where he is deployed by the Central
or State Government
(b) Rape by a relative, guardian or teacher, or by a man in a position of trust towards the
woman
(c) Rape during communal or sectarian violence
(d) Rape on a woman incapable of giving consent
(e) Rape by a man who is in a position of control or dominance over the woman
(f) Rape on a woman suffering from mental or physical disability
(g) If the man causes grievous bodily harm or maims or disfigures or endangers the life of
the woman while committing rape
(h) If the man commits rape repeatedly on the same woman
(i) Rape on a girl under sixteen years of age.

Thus, the Criminal Law (Amendment) Act of 2013 added more situations where the woman
is a vulnerable position, in addition to the custodial rape situations that had been added by the
1983 amendments. The Parliament took note of allegations or rape by armed forces in their

6
Section 114A was also introduced by the Criminal Law (Amendment) Act, 1983.

7
places of deployment, and equating it with rape by police within their jurisdictions, added
such rape to the list of aggravated rape offences. It also noted how rape is used as a tool of
subjugation during incidents of communal and sectarian violence and added rape during such
violence to the list of aggravated rape offences. It also took into consideration where women
are incapable of giving consent because of mental or physical disabilities or other reasons.
Recognizing the extremely vulnerable position that the woman is put in, Parliament added the
offence to the list of aggravated rape offences. Noting incidents such as the December 16
gang rape, where the woman was subjected to extreme violence, Parliament also added
causing grievous bodily harm or maiming or disfiguring or endangering the life of a woman
in the course of committing rape, within the scope of aggravated rape.

A charge under Section 376(2), IPC continues to attract the presumption under Section 114A
of the Indian Evidence Act. Further, although the minimum punishment was retained at 10
years, the maximum punishment was increased to imprisonment for the rest of the person’s
natural life.

5. Section 376A, IPC

The Criminal Law (Amendment) Act, 2013 also introduced a new offence of causing death
during the commission of rape. If in the course of committing non-aggravated rape or
aggravated rape, the man inflicts an injury that causes the death of the woman, or causes the
woman to be in a persistent vegetative state, such offence is now punishable under Section
376A of the IPC. The mens rea for committing murder of culpable homicide amounting to
murder need not be separately proved. The prosecution only needs to establish that rape was
committed, and the injury which caused the death or caused the woman to be in a persistent
vegetative state was inflicted during the commission of such rape. Hence, if a December 16-
type incident were to occur, the prosecution would charge the accused under Section 376A,
instead of charging him under Section 302, IPC. If convicted for the offence, the minimum
punishment is imprisonment for twenty years and the maximum punishment is death.

Death/ Persistent
Rape Vegetative State Section 376A

8
 6. Section 376B, IPC
Section 376B of the IPC deals with non-consensual sexual intercourse by a husband with his
wife, when they have separated. Such separation may be either through a decree of separation
or otherwise. Although marital rape is not an offence under the IPC, to the limited extent
provided by Section 376B, a husband may be prosecuted and punished for the rape of his
wife, during separation. Prior to 2013, the punishment for the offence was two years. The
Criminal Law (Amendment) Act, 2013 introduced a minimum punishment of two years, and
a maximum punishment of seven years for the offence. However, a limitation has now been
imposed on cognizance of complaints of such rape during separation. Section 198B was
introduced in the Code of Criminal Procedure, 1973 by the Criminal Law (Amendment) Act,
2013. Section 198B prohibits a court from taking cognizance of an offence punishable under
Section 376B of the IPC, unless the complaint is made by the aggrieved wife. Further, the
Court has to be prima facie satisfied that the facts complained of had occurred. This imposes
a relatively higher standard compared to other criminal complaints, where no such express
standard is prescribed.

7. Section 376C
Section 376 C incorporates what used to be Sections 376B, 376C and 376D pre-2013. The
section criminalizes sexual intercourse by certain categories of men with women under their
charge or custody. Four categories of men are covered by the section – first, men in a position
of authority or in a fiduciary relationship with the woman concerned; second, public servants;
third, a superintendent or manager of a jail, remand home, or other place of custody, or a
woman or children’s institution; and fourthly, a man who is on the management or staff of a
hospital. If any of the categories of men listed above induce or seduce any woman in their
custody or charge or present within their premises to have sexual intercourse with them, then
they can be prosecuted and punished under Section 376C. One of the prerequisites to invoke
Section 376C is that the sexual intercourse should not amount to rape. Hence, the section
covers all those situations where intercourse is consensual, but is criminalized because of the
nature of the relationship between the parties concerned. The punishment under this section is
lesser than that for rape – the minimum punishment is five years imprisonment and the
maximum is ten years.

9
There are very few cases that have arisen under these sections. One of the important cases in
this regard is Omkar Prasad Verma v. State of Madhya Pradesh.7 The appellant in this case
was a teacher in a government school. A female student alleged that the accused had sexual
intercourse with her, threatening that she would fail in her classes if she did not have
intercourse with him. The accused had been charged under Section 376B, IPC. Interpreting
the term “custody,” the Court held that it implies guardianship. It further held that to satisfy
the requirement of Section 376B, such custody must be lawful. It further held that sexual
intercourse must take place at a place where the woman was in custody. If it were to take
place outside the school (in this case), and not in the precincts of the school, it would not
amount to an offence under Section 376B. Hence, the Court through its interpretation appears
to have narrowed the definition of custody, linking it to presence within a premises.

8. Section 376D: Gang Rape

The offence of “gang rape” was punishable under Section 376(2)(g) of the IPC, prior to the
2013 amendments. Explanation 1 to Section 376(2) [pre-2013] stated that when a woman is
raped by one or more persons in a group of persons acting in furtherance of their common
intention, each of the persons shall be deemed to have committed gang rape. Thus, the
offence of gang rape incorporated the principle of “group liability.” An interesting issue that
arose in the context of gang rape was whether a woman could be punished for the offence.
This question was dealt with by the Supreme Court in Priya Patel v. State of Maharashtra.8

In Priya Patel, the Supreme Court held that a woman cannot be punished for gang rape. It
said that such a possibility was “conceptually inconceivable.” The reasoning was that rape
can be committed only by a man, and not by a woman. It held that by operation of the
deeming provision, a person who has not actually committed rape is deemed to have
committed rape even if only one of the group in furtherance of the common intention has
committed rape. The Court reasoned that since a woman cannot be said to have an intention
to commit rape, she cannot be prosecuted and punished for gang rape. The Justice Verma
Committee differed with this interpretation of the Court. It recommended that the IPC be

7
(2007) 4 SCC 323.
8
(2006) 6 SCC 263.

10
amended and explanation be added to the offence of gang rape, stating that a woman could
also be prosecuted and punished for committing gang rape.

In 2013, a separate section [Section 376D] was carved out for the offence of gang rape. This
was on the basis of the recommendation of the Justice Verma Committee that had proposed a
different punishment structure for the offence. The wording of Section 376D that defines
gang rape is slightly different from what it was pre-2013. The section now says that where a
woman is raped by one or more persons constituting a group or acting in furtherance of a
common intention, each of those persons shall be deemed to have committed the offence or
rape. The distinction between “constituting a group” and being “members of a group” is not
clear. Further, the section now makes a distinction between “constituting a group” and
“acting in furtherance of common intention.” Again, the implication of such a distinction is
not clear.

There are two major differences that Section 376D has over Section 376(2)(g). The
punishment for gang rape has now been increased. A minimum punishment of 20 years
imprisonment has been stipulated. Further, the maximum punishment is imprisonment for the
rest of the person’s natural life. A compensation scheme is also provided. The court may
impose a fine to cover the medical expenditure and rehabilitations costs incurred by the
victim of gang rape. However, a glaring omission is that if death is caused during the
commission of gang rape, it is not covered under Section 376A, IPC, since that section only
mentions offences punishable under Section 376(1) and (2) of the IPC.

9. Section 376E
Section 376E was introduced into the IPC by the Criminal Law (Amendment) Act, 2013. It
deals with repeat offenders, and states that if a person has been previously convicted of an
offence punishable under Sections 376 or Section 376A or 376D and is subsequently
convicted of an offence punishable under any of these sections, he shall be punished under
this section. The punishment is imprisonment for the rest of the person’s natural life or with
death. The section appears to incorporate the penal theory of incapacitation, recognizing that
the person might be too dangerous and also incapable of reform.

11
This section was first used recently in Mumbai in the Shakti Mills rape case. The accused in
that case were apprehended for committing a series of rapes over a period of time. They were
tried separately for two sets of rapes that they had committed. Once they were convicted for
one of them, a charge of Section 376E was added in the second trial. The Sessions Court
convicted the accused under Section 376E and sentenced them to death.

10. STEREOTYPING IN RAPE ADJUDICATION

The primary evidence in rape cases is the testimony of the victim. In Gurmit Singh v. State of
Punjab,9 the Supreme Court held that the sole testimony of the prosecutrix is sufficient to
convict a man accused of rape. However, rape myths and stereotypes have and continue to
impact rape adjudication. In this part of the module, we will focus on understanding what
rape myths and stereotypes are, using instances where the Supreme Court has indulged in
stereotyping and also analyse the possible ways in which such stereotyping impacted rape
adjudication. To begin with, we need to define rape myths. Burt provides a useful definition
of rape myths. She says that rape myths are “prejudicial, stereotyped, or false beliefs about
rape, rape victims, and rapists.”10 These myths can be descriptive, where for instance they
describe how a typical woman would react to rape. In most cases however, they end up being
prescriptive, where for instance they mandate how a woman ought to react to rape.11

Rape
Prejudicial,
Rape Myths Stereotyped, False
Beliefs
Rape Victims

Rape Offenders
Examples of rape myths include calling rape offenders “beasts,” “animals” etc. This would
imply that those who commit rape are not “human,” or are somehow different from the

9
(1996) 2 SCC 384.
10
Martha R. Burt, Cultural Myths and Supports for Rape, 38 J. PERSONALITY & SOC. PSYCHOLOGY 217, 218
(1980).
11
See JENNIFER TEMKIN & BARBARA KRAHÉ, SEXUAL ASSAULT AND THE JUSTICE GAP: A QUESTION OF
ATTITUDE 32 (2008). For application of rape myths and stereotypes in the Indian context, see: MRINAL SATISH,
DISCRETION, DISCRIMINATION AND THE RULE OF LAW: REFORMING RAPE SENTENCING IN INDIA (Forthcoming,
Cambridge University Press, 2016).

12
“normal” person. Hence, in situations where rape is committing by an acquaintance, someone
who is a friend, relative – someone the woman trusts, the tendency of people and the legal
system might be to disbelieve that such a man is capable of committing rape. Examples of
other rape myths include: (a) that stranger rape is more traumatic than rape by an
acquaintance; (b) That women often lie about being raped; (c) That if a rape allegation is true,
a woman will report it promptly; (d) Women physically resist when attacked.12

The Supreme Court through some of its judgments has also unfortunately indulged in
prescriptive stereotyping. One example is the much-cited case of Bharwada Bhoginbhai
Hirjibhai v. State of Gujarat.13 The issue before the Court in Bharwada was as to whether the
sole testimony of the prosecutrix could be relied on in convicting the accused person. In
arriving at the conclusion that it could, the Court provided a set of reasons as to why an
Indian woman would not lie about rape. The Court observed: “(1) A girl or a woman in the
tradition-bound non-permissive society of India would be extremely reluctant even to admit
that any incident which is likely to reflect on her chastity had ever occurred; (2) She would be
conscious of the danger of being ostracized by the society or being looked down by the
society including by her own family members, relatives, friends, and neighbours. (3) She
would have to brave the whole world. (4) She would face the risk of losing the love and
respect of her own husband and near relatives, and of her matrimonial home and happiness
being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to
secure an alliance with a suitable match from a respectable or an acceptable family. (6) It
would almost inevitably and almost invariably result in mental torture and suffering to
herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel
extremely embarrassed in relating the incident to others being overpowered by a feeling of
shame on account of the upbringing in a tradition-bound society where by and large sex is
taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the
family name and family honour is brought into controversy. (10) The parents of an unmarried
girl as also the husband and members of the husband’s family of a married woman, would
also more often than not, want to avoid publicity on account of the fear of social stigma on
the family name and family honour. (11) The fear of the victim herself being considered to be

12
See: MRINAL SATISH, DISCRETION, DISCRIMINATION AND THE RULE OF LAW: REFORMING RAPE SENTENCING
IN INDIA (Forthcoming, Cambridge University Press, 2016).
13
(1983) 3 SCC 217.

13
promiscuous or in some way responsible for the incident regardless of her innocence. (12)
The reluctance to face interrogation by the investigating agency, to face the court, to face the
cross-examination by counsel for the culprit, and the risk of being disbelieved, acts as a
deterrent.”14 Thus, the Court prescribed reasons as to why an Indian woman would not lie
about rape – thus indulging in prescriptive stereotyping. The factors that the Court laid down
were based on notions of chastity, virginity and honour, rather than on legal justifications and
reasons as to why the testimony of a rape victim should be believed. The Justice Verma
Committee in its Report took note of such stereotyping, and advocated a move towards
changing the approach in dealing with rape. It recommended that the focus be on the
violation of a woman’s fundamental rights that sexual violence leads to, and not such
stereotypical factors.15

A case preceded by Bharwada was a judgment of the Supreme Court in Rafiq v. State of
Uttar Pradesh.16 In that case, the Court held that “[w]hen a woman is ravished what is
inflicted is not merely physical injury, but the deep sense of some deathless shame.”17 This
again was an exercise in prescriptive stereotyping, with the Court expecting a woman to feel
shame on being raped. Various studies have shown the adverse impact that such stereotyping
has on rape adjudication.18 One area where such impact can be seen is when a woman is
testifying about the rape. Section 280 of the Cr.P.C. states that a judge may record the
demeanour of a witness when he/she is testifying. The demeanour becomes a factor on which
the Court decides on whether to rely on the evidence of the witness as truthful or otherwise.
An example of this was seen in the decision of the Supreme Court in Kamalanantha v. State
of Tamil Nadu.19 The case involved the rape of multiple young girls in an Ashram by a self-
declared godman. The young victims testified before the trial court about the various
incidents of rape that had been committed on them. While testifying some felt giddy, some
had to be offered water, and some cried uncontrollably. Both the trial court and the Supreme
Court appeared to be moved by this and stated that they were convinced of the veracity and

14
(1983) 3 SCC 217, 225-26.
15
The Justice Verma Committee Report on Amendments to the Criminal Law, Chapter 2.
16
(1980) 4 SCC 262.
17
(1980) 4 SCC 262, 265.
18
See: Adler, Sue Lees, MRINAL SATISH, DISCRETION, DISCRIMINATION AND THE RULE OF LAW: REFORMING
RAPE SENTENCING IN INDIA (Cambridge University Press, Forthcoming 2016).
19
(2005) 5 SCC 194.

14
the truthfulness of the victims’ testimony because of their reactions. The courts did not
provide legal reasoning for such reliance. Thus, when the court encountered stereotypical
reactions by the rape victims, it believed them. This can have an adverse impact in cases
where the rape victim behaves differently from how society or the court expects her to
behave. What if a woman does not feel ashamed? What if she does not cry while testifying or
does not appear visibly traumatised? Experiences of rape victims clearly show that each
person reacts to the trauma differently.20 Hence, expecting the same or similar response from
every rape victim would be illogical, unfair and would lead to re-traumatization.

Another factor that impacts rape adjudication is medical evidence. Outdated medical
examination methods such as the two-finger test were used (and continue to be used) to
determine whether sexual intercourse has occurred. Literature has shown how these tests are
unreliable.21 At the same time, doctors also note the state of a woman’s hymen to note
whether she has engaged in sexual activity or not – another irrelevant factor since sexual
history cannot be adduced to adjudge consent. As mentioned earlier, proof of resistance was
sought in rape cases to show lack of consent. This was based on a rape myth that women
necessarily resist the attack – a notion which was exemplified in the Pratap Misra and
Mathura cases. Textbooks of medical jurisprudence also stated that it is not possibly for a
man to single-handedly rape an adult woman.22 In fact, the Orissa High Court in Sukru
Gouda v. State of Orissa,23 reiterated this stereotype, and acquitted a man accused of rape, on
the ground that there were no injuries on the body of the woman. The Supreme Court
overruled the decision, and held that there was no legal principle (as the Orissa High Court
had stated) to the effect that a man cannot single-handedly rape an adult woman.24 These, and
similar rape myths in relation to injuries, further reinforced by books of medical
jurisprudence, led to Parliament inserting an explanation to Section 375 stating that lack of

20
See: Sohaila Abdulali, I Was Wounded, My Honor Wasn’t, The New York Times, January 7, 2013, available
at:http://www.nytimes.com/2013/01/08/opinion/after-being-raped-i-was-wounded-my-honor-wasnt.html?_r=0
(Last visited on October 15, 2015).
21
See: Durba Mitra & Mrinal Satish, Testing Chastity, Evidencing Rape, 49(41) ECONOMIC AND POLITICAL
WEEKLY 51 (2014).
22
See: Durba Mitra & Mrinal Satish, Testing Chastity, Evidencing Rape, 49(41) ECONOMIC AND POLITICAL
WEEKLY 51 (2014).
23
2004 Cri.L.J. 1566 (Ori).
24
State of Orissa v. Sukru Gouda, (2009) 2 SCC 118.

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physical resistance does not amount to consent on part of the woman.25 On the issue of the
two-finger test, the Supreme Court in Lillu v. State of Haryana,26 held that the “test” violates
a woman’s right to privacy and dignity, guaranteed by Article 21 of the Constitution. It
instructed courts not to use the results of such test, although not completely banning the test.

11. SENTENCING IN RAPE CASES

Sentencing in rape cases has always been an issue that has provoked critique, especially in
the context of egregious sentencing decisions of courts. Prior to 2013, both Sections 376(1)
and (2) provided minimum punishments, but provided judges the discretion to reduce
sentence below the minimum specified. In various cases, courts reduced sentences on
irrelevant grounds.27 The Supreme Court often reiterated how courts should give importance
to sentencing in rape cases, show sensitivity towards the victim, and use the deterrent theory
of punishment especially in cases involving young girls.28 It ruled that irrelevant mitigating
factors, such as the socio-economic condition of the accused, should not be considered
relevant.29 Reacting to the perceived wrongful use of discretion by sentencing courts,
Parliament in 2013 took away the sentencing discretion vested in judges in rape cases. As
mentioned earlier, the IPC still continues to stipulate a minimum punishment for rape cases.
However, judges can no longer reduce the sentence by providing “adequate and special
reasons.”

12. SUMMARY

Aggravated rape provisions were introduced in the Indian Penal Code in 1983, primarily as a
response to the Supreme Court’s judgment in the Mathura case. Subsequently, another set of
amendments were introduced in 2013 primarily on the recommendations of the Justice Verma
Committee on Amendments to the Criminal Law. The various aggravated rape provisions
recognise situations where the victims are in a vulnerable situation, thus necessitating
different evidentiary rules, as well as higher punishment. At the same time, there are various

25
Proviso to Explanation 2 to Section 375, IPC.
26
(2013) 14 SCC 643.
27
See for instance: Raju & Krishna v. State of Karnataka, (1994) 1 SCC 453.
28
State of Karnataka v. Krishnappa, (2000) 4 SCC 75.
29
State of Karnataka v. Krishnappa, (2000) 4 SCC 75.

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rape myths and stereotypes that impact rape adjudication. There is an urgent need to rid rape
adjudication of these myths, in order to ensure proper application and implementation of the
law. The same applies to sentencing in rape cases as well.

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