SEXUAL ASSAULT LAW REFORMS
Item
- Title
- SEXUAL ASSAULT LAW REFORMS
- extracted text
-
/So
SEXUAL ASSAULT LAW REFORMS
A PROCESS DOCUMENT 2000
NAINA KAPUR
JASJIT PUREWAL
KI RTI SINGH
SAKSHI
IFSHA
AIDWA
(
(
Table of Contents
Pages
Part I: Background note:
A. The history of change of laws relating to rape and
sexual assault
B. Redefining rape: a case in point
C. From the Supreme Court to the Law Commission of India
(
(
1-22
Part II: The 172nd Report on Review of Rape Laws
(Law Commission o India) 25.3.00
23-189
Part III: Responses to the 172nd Report on Review of Rape Laws
by Law Commission of India dtd. 25.3.2000
filed in the Supreme Court of India in W.P.(Cr.) 33 of 1997
190-195
Part IV: Draft Legislation by SAKSHI, IFSHA, AIDWA
196-209
(
(
(
(
(
f
I
1
Part [
A. The history of change of laws
relating to rape and
sexual assault
B. Redefining rape: a case in
point
C. From the Supreme Court to the
Law Commission of
India
1
A.
THE HISTORY OF CHANGE OF LAWS RELATING TO RAPE AND
SEXUAL ASSAULT
The attempt to change of laws relating to sexual assault began in the late 70s
after the pronouncement by the Supreme Court in the Mathura rape case and the
media coverage of several other cases of rape, mainly in police custody,
Mathura's case was particularly shocking, though not unusual, where the
Supreme Court of India in 1979. refused to believe that a poor village girl had
been raped in the police station just because she did not have visible signs of
injury and had not screamed and shouted. It was also significant that the
Supreme Court chose to discredit Mathura’s testimony because she had a
relationship in the past with a boyfriend. Instead of focusing on the anguish of a
helpless teenager brutally raped inside a police station, a situation where the
police wielded absolute power over a poor female, the Court heaped further
abuse on the girl by calling her 'lascivious'.
The extensive abuse of power by the police and persons in positions of authority
made this a critical case to seek a change in law. The courts were clearly
manned by judges with a traditional, patriarchal mindset and it was time that the
Women's Movement demanded extensive changes in the law. The Law
Commission of India in its report in 1980 on Rape and Sexual Assault had also
suggested radical changes in the law. Demands of the Women's Movement
included the following;
2
(
(
<
(a) Custodial rape or rape by persons manning custodial institutions and rape in
certain other circumstances in which the complainant is particularly vulnerable
should be considered an aggravated form of rape and a higher punishment
i
should be awarded for this apart from punitive fines. A further demand in this
category of rape, was that if sexual assault is proved and the complainant says
i
that she did not consent, then the court would presume that the complainant did
not consent.
The Law Commission had also recommended these changes.
Within the women's movement some felt that this presumption must exist for all
cases of rape while others felt that it could be confined to cases of custodial rape
and rape of a minor, of a pregnant woman, and in cases of gang rape. Some
groups also wanted to broaden the category of aggravated / custodial rape to
include within it, rape by men in positions of social and economic authority over
(
the complainant. This would include caste rape, and revenge rape by employers,
(
landlords etc.
(b) It was demanded that Section 155(4) of the Indian Evidence Act, which
<
c
allowed evidence relating to the character and past sexual history of the
complainant to be produced in court, be deleted. This evidence always fed into a
prejudicial mind set in court where in effect, a woman's sexual past became the
basis to judge her 'character* and became reason enough to doubt her evidence.
<
(c) The organisations also demanded that marital rape be included within the
(
definition of rape.
(
(
(
(
(
3
3
(d) Changes in the law of procedure, recommended by the Law Commission in
•>
its 84th Report, were endorsed and included in the movement's demands for
change. These changes in the Code of Criminal Procedure and the Indian
Evidence Act were primarily aimed at making the investigation procedures more
sensitive to women
and girls and facilitated the recording of the complainants
evidence in a sympathetic, non-hostile environment.
(e) The Law Commission and women’s organisations also strongly -rged tha^
':5
police personnel who did not record the complamt or investigate properly
deserved punitive action
While some of these suggestions were
accepted by the government, other
of the Indian Evidence Act,
demands, such as deletion of Section 155(4)
■>
inclusion of marital rape within the offence of rape, changes m procedure and
personnel accountable, were not accepted. The concept of
a
making police
■4.5-a
custodial rape was introduced in the law and higher minimum and maximum
punishments (ten years to life) were
stipulated. The Indian Evidence Act was also
amended to shift the burden of proof to the accused in cases of custodial rape
after sexual intercourse had been proved. The law was changed to stipulate that
all rape trials would be held in camera
Subsequent years highlighted how even these limited changes did not produce
the desired results. Inspite of the fact that
minimum and maximum punishment
were prescribed by the law, sentences awarding less than the mandatory
i
4
(
(
minimum continued to be the norm. Even after the amendments, rapists
continued to be punished with three, four, and five year sentences.
i
Most importantly we realized how inadequate the law was to address the issue of
sexual assault. The definition of rape did not even include within it, rape by
(
insertion of objects into the vagina and anus, oral sexual intercourse and forced
anal intercourse. Child sexual assault, which often did not include penetration by
V
the penis into the vagina but included fingering, oral sex etc. was not considered
rape by the law. Case lav/ was indubitably bound in translating 'penetration' as
penile. All other violations did not get included into the definition of rape, and
children where the most poignant victims of this exclusion. The procedures were
also wholly inadequate to deal with the interrogation of children and women.
In these circumstances, the National Commission For Women organized a
seminar in October 1992 on child rape pursuant to which the NCW set up a subcommittee to make recommendations on the law relating to child sexual assault.
t
The sub-committee submitted its report in August 1993. While addressing that
within the existing legal, social and political context, justice for rape victims
seemed impossible, the sub-committee attempted to redraft the law relating to
sexual assault in the Indian Penal Code. The committee realized that the entire
law relating to sexual assault would have to be redrafted if child sexual assault
had to be included as an empirical reality. The very definition of rape and
molestation in the Indian Penal Code was defective and limited and needed to be
I
1
I
*
X
5
V
changed for children as well as adults. The definition was archaic, since it saw
molestation as sexual assault with the intention to "outrage the modesty of a
woman". The sub-committee made the following critical recommendations;
(a) The committee redefined and expanded the definition of rape and included
within it the gravest form of sexual assault, penetration into any orifice by the
penis and penetration by an object or a part of the body into the vagina or anus.
(b) A lesser form of sexual assault was defined by the committee to inclucje
touching etc. for a sexual purpose. This section sought to replace the existing
section relating to molestation (section 354) in the Indian Penal Code.
(c) The committee also redefined exhibitionism and "eve teasing" to include
gestures, words and sounds with a sexual purpose.
(d) Making a child perform various sexual acts was included within the definition
of sexual assault.
(e) The category of custodial rape was broadened to include other forms of
aggravated sexual assault. Under this protracted sexual assault, which usually
involved the minor being sexually assaulted over a period of time, was included.
Similarly a category of sexual assault on a pregnant woman or on a female
suffering from mental or physical disability was included. It was also suggested
that sexual assault by a person in a position of trust, authority, guardianship or of
economic or social dominance should be viewed as aggravated assault.
Similarly, sexual assault during which grievous bodily harm, maiming etc. occurs
or sexual assault which endangers the life of the victim was included therein.
6
Punishment was a critical area, which needed to be addressed in consonance
with the nature/gravity of the assault, and the age of the victim. The subcommittee therefore made requisite recommendations on punishment.
(f) The committee included marital rape/sexual assault in the definition of sexual
assault by not excluding it in the present section of rape in the IPC.
(g) The sub-committee also reiterated the demand for deletion of section 155(4)
(
1
of the Indian Evidence Act which allows evidence regarding the character and
past sexual history of the complainant during the trial.
(h) Recommended procedural amendments included:
i. Interrogating the complainant only at a place of her choice and in the presence
of her friend or family or whoever she felt comfortable with/or wanted with her.
i
ii. The interrogation be carried out only by a female police officer or by another
woman social worker.
iii. Standardisation of the medical examination of the complainant and the
accused. The committee gave the details of the nature of the facts that should be
included in the medical examination.
(
iv. The committee suggested that any available doctor should be allowed to carry
out the medical examination with the complainant's consent. In fact the
committee made it mandatory for the doctor to examine the complainant if asked
(
to do so.
(
v. it was recommended that if a police officer refused to register the complaint or
investigate properly he should be punished.
i
1
(
7
(i) Finally the committee suggested that the procedure for recording evidence of
a complainant in a case of sexual assault should be changed to make the court
environment less hostile to both women and children so as to create an
empathetic atmosphere in which they can give evidence without fear. It was
recommended that the complainant be allowed to have a trusted person with her
during in camera proceedings. The committee also recommended that especially
in the case of children, the complainant should not be forced to give her evidence
in the presence of the accused.
(j) The committee redefined consent to mean the unequivocal voluntary
agreement of the woman to engage in the sexual activity in question.
B. REDEFINING RAPE: A CASE IN POINT
In the history of legal reform, the fountainhead of change has often been one
pivotal case, which has either through its human tragedy, or the absurdity of
legalese and sometimes-innovative judicial interpretation, changed the course of
law. Renu's1 case may indeed prove to be one such case.
Child sexual abuse (CSA) continues to be a crime where social and judicial
naivete, excludes scores of Indian children from accessing justice and protection.
Largely because the extent, the impact and the nature of the crime, elude social
acceptance and understanding. Somewhere as an Asian milieu we are loathe to
accept that many of the children we love, know and protect are vulnerable and
8
(
victimized routinely by adults whom we may also trust. But even as we struggle
with our own credulity, children’s experience of child sexual abuse continues to
be pervasive and ignored. The judicial process and legal framework being the
i
(
least equipped to address it.
t
In 1994 “X”, an undersecretary in the Home Ministry, was charged with sexually
1
r
abusing his youngest daughter Renu. She was eight years old at that time. The
abuse which started when she 'was about five has many bizarre elements to it
(
including the presence of four accomplices, all colleagues of X in the Home
Ministry, who spent afternoons in a hotel indulging in various sexual acts whilst X
abused Renu. X began the abuse at his home, at night when his wife and other
two daughters were asleep and used threats, violence and fear to keep Renu
(
from telling anyone. He then took her to the office during working hours, where
he continued the abuse in the lunch hour whilst his colleagues indulged in a
(
(
sexual orgy with each other in a nearby hotel
These facts were revealed by Renu to her elder sister in June 1994 while they
I
(
were visiting their aunt in Ranikhet and the father was not present. S, Renu s
mother immediately returned home and filed a complaint in the Crime’s Against
Women’s Cell in Nanakpura. X disappeared and the investigations were
discontinued due to his non-appearance. S informed the Home Ministry asking
(
(
for a CBI enquiry, through various letters, which were ignored by the Ministry. In
1 For the sake of this document, the name of the original complainant m the cases described has been
changed to protect the innocent
v
(
(
9
(
April 1995 8 returned to the CAWC under a new DCP and with the help of an
(.
(
NGO, ‘Sakshi’, the case was pursued
/
(
Once charge-sheeted, the Session Judge found X liable to be charged with
(
Sections 354/377/506 (“outraging the modesty of a woman” and “carnal
intercourse against the order of nature) and the other four defendants, two of
whom were women employees of the Home Ministry, charged with Sections 109
(aiding and abetting) read with Section 354 and 377.
(
RENU’S EXPERIENCE OF CSA
(
Both at home and in the hotel, X inserted his finger into Renu’s vagina and anus
(
repeatedly. Alongside this he forced her to perform oral intercourse on him.
Physical effects of the abuse were found in Renu’s vagina where the medical
i
examination of the eight-year-old revealed, “introits lax” or a loosening of the
(
vaginal muscles. Emotionally she was withdrawn, stayed largely by herself and
(
did not interact with other children, hardly spoke and never smiled or showed
(
signs of childish play or happiness. Psychologically, apart from being withdrawn,
(
she displayed an obsessive desire to bathe which she did for hours after
(
(
returning from the office as well as in the mornings. She also brushed her teeth
repeatedly.
v
Sakshi counselors found Renu to be a slight, diffident child who was much
smaller physically than her biological age. She did not engage in any
(
i
(
10
conversation and displayed fear and mistrust towards all adults. It was only after
many sessions with the counselor drawing and painting (her favourite self
expression) that she slowly began to open up and talk about herself. Her details
about the abuse were drawn graphically and she preferred to write rather than
articulate the events through speech. She was very scared of her father and
repeatedly begged the counselor to never tell him or let her face him again. She
showed visible signs of fear around men and did not like any physical contact
v/ith women either. After six months of therapy her mother and Nana visited
Sakshi and both broke down as they told the counselor that her teachers had
noticed a big change in Renu because she had started to play with other children
and was beginning to sing. Renu learnt to sing after eight years of living. Not
because she suddenly discovered music but because the protracted trauma of
her life suddenly came to an end- she was suddenly allowed to speak and cry for
help. Renu learnt to sing not because she would forget what her father did, but
because someone assured her that her father had wronged her, her pain and
fear were real and she had a right to trust adults who could protect rather than
violate her.
THE LAW
Renu’s trauma found scant understanding in the law. Legally Renu was not
raped because her vagina was never penetrated by her father's penis. All other
violations of her various orifices, which were as or more painful, and equally or
more humiliating, did not deserve to be understood as rape of her body. Instead
(
11
(
(
(
the learned Additional Sessions Judged ruled that
“Both the acts, i.e. insertion
of finger in the anus and the vagina and putting the male organ into the mouth of
the prosecutrix are acts which are against the order of nature. In order to
(
(
(
constitute an offense of rape, there has to be the use of the male organ, which
must find place in the vagina of the prosecutrix. The word, penetration does not
connote penetration by a foreign object." Hence section 377
For the judge or perhaps in the eyes of law, the object of penetration takes
t
t
precedence to the physical trauma/damage to the complainant as well as the
(
nature of the relationship between the abuser and the abused. The age of a
<
minor also manages to underscore legal myopia of the fact that a penis inside a
z
very young child may in effect lead to death. Section 377 in effect suggests that
what we are ruling against is the nature of the sexual act, not the morality and
/
violation of a father and daughter relationship, not the crime of sexual violation of
(
a minor, but how a sexual act must be performed for it to constitute ‘sex’.
(
Meanwhile Section 354 which refers to “outraging the modesty of a woman” has
(
been added, not perhaps because the judge cannot see the absurdity of such a
(
section in the case of Renu but because he knows that 377 is not enough.
Adding this section in effect magnifies the legal confusion over what he
(
understands as child sexual abuse.
Any man or woman who knows the details of this case can experience the horror
and pain of Renu’s sexual violation. The law on the other hand can only
(
(
(
(
12
experience its own confusion. It is too busy unraveling which kind of sexual act is
‘normal’ as opposed to ‘unnatural’. The trauma of the child and the question of
whether there can be ANY judicial remedy to equate the impact of this
experience on Renu’s life are beyond the ambit of the court.
(
This in face of the fact that Section 376 (2) f) IRC was introduced to cover child
(
sexual abuse. But trapped in the limited definition of what constitutes a ‘sexual
<
act’ and therefore a 'sexual violation’, case law limited the use of the word
(
penetration to mean contact between the penis and vagina. Section 377 IRC was
<
in fact a dated law, framed to control homosexuality. Statistically research shows
4
that in nearly 70 percent of child sexual abuse cases the penis is not used for
<
penetration because either the damage will kill the child and /or reveal the
(
identity of the abuser. For all these children the law offers us two choices-: a
section against homosexuality or a crime which is labeled “outraging the modesty
of a woman” with a maximum sentence of two years. We need to explain to our
(
children when they undergo sexually violent, violative, humiliating and traumatic
experiences it is only their ‘modesty’ which is being damaged, not their body or
(
(
sexual integrity. That at best we can understand what happens to them to be like
consensual sex between two men.
JUDICIAL PROCEDURE
Five years have passed since the law came into Renu’s life as her guardian. X
i
<
t
and the four others roam free on bail, causing unimaginable fear and insecurity in
(
<
<
13
I
(
the hearts of mother and children. Renu, despite many assurances to the
contrary by her counselors and police personnel, has had to repeat her story
<
over and over again before many strangers; men in uniform, the CBI, magistrates
(
<
and finally the Court. The child has relived the horror and shame repeatedly. She
(
was subjected to a nine-day evidentiary process (recorded in ninety-five pages)
where seven lawyers for the five accused grilled the child for long hours. She
was forcec to face the father who carried memories of acute fear and pain and
i
<
after a long procedural struggle through the High Court, a screen was allowed to
protect the child from facing the offenders directly. Her support counselor was
objected to by the defense lawyers and a special court order had to be procured
to allow a support person to help the child feel emotionally settled. After 96 pages
of recorded evidence in 1997, the defense is now' raising a demand to re
examine Renu.
Basically the judicial process amplified the lack of space that a child has within
our world of rights. Child sensitive procedures have never been addressed and
find no room in judicial guidelines. Justice is a world of adults, largely men, in a
i
courtroom where an abused child must give sexual details of an experience for
which she often has neither the words nor the nerve for articulation. All rights are
articulated from the context of the accused even when their victim is a child and
in this case a daughter. And any or all interventions to make the atmosphere
child sensitive are met with mistrust and legal dogma
14
I
ATTEMPTED RECOURSE
The complainant’s mother filed a criminal revision before the Delhi High Court
and on 23.5.95 the Hon’ble High Court rejected the same as a case of rape, a
view upheld by the Supreme Court of India on 2/12/96. At the same time, the
(
<
Supreme Court in Sakshi vs. the U.O.I has been asked to consider the legal
implications of such a narrow interpretation of rape on the equality rights of
children who have undergone the experience of child sexual abuse in contexts
t
similar to that of Renu.
(
C. FROM THE SUPREME COURT TO THE LAW COMMISSION OF INDIA
(
The Supreme Court pre-determined the outcome of Renu’s case: repeated
finger/anal, fmger/vagina and penile/oral penetration of a daughter by her father
cannot be viewed as rape. At trial, the only charges which remained against the
accused were that of committing an unnatural offense (s.377) and “criminal force
(
with intent to outrage a woman’s modesty” (s.354). Clearly an impact-based
approach to sexual abuse was wholly absent.
<
The court’s perception contradicted women and children’s fundamental rights of
equality (article 14)
and life with dignity (article 21) under the Constitution of
India so Sakshi opted to file a writ petition in the Supreme Court of India. Renu’s
case became illustrative of what was problematic with the law on rape, especially
where it was used to negate the experiential reality of children and sexual abuse.
A technical approach to rape led to scientific outcomes with little or no
consideration given to the sexual reality of women and children in abusive
situations. With the rising incidence of child sexual abuse and in the absence of
<
I
(
15
(
/
any legal amendments, Sakshi called for judicial interpretation of rape For the
(
purposes of the writ, subject to amendments in the law, an interpretation was
<
needed to address sexual abuse in terms that captured some part of that reality.
(
In that context, Sakshi’s writ asked the court to interpret the existing section on
(
rape (S.375IPC) by:
declaring... that “
c<
(
Indian
Penal
Code
shall
include
all
forms
of penetration
such
as
penile/vaginal penetration, penile/oral penetration, penile/anal penetration,
finger/vaginal and finger/anal penetration and object/vaginal penetration;
(
•
directing law enforcement agencies “to register all such cases found to be
(
....falling within the broadened interpretation of “sexual intercourse” .... as
(
offenses under sections 375..." etc. of the Indian Penal Code, 1860 (that is,
(
as rape).
(
The writ was filed in January 1997. After two to three hearings before the
Supreme Court, Sakshi filed three precise issues for consideration. The first two
(
focused on judicial interpretation of sections 375/377/354 IPC while the third
addressed the need for law reform. Based on the issues presented, the Supreme
Court directed the Law Commission of India (LCI) to consider whether the rape
(
{
section could be interpreted to plug existing loopholes or otherwise to suggest an
amendment to the law.
{
(
The LCI opted for the latter task. At this point Sakshi, along with IFSHA and
(
AIDWA participated in two significant discussions on amendments to the law of
rape (on 7.09.00 and 17.09.00 respectively). Prior to the meeting, the LCI
(
1
forwarded their own proposed draft which was then compared with an initial draft
prepared by Sakshi/IFSHA/AIDWA as representative organisations (R.O.’s). The
P.O. draft was based on an earlier draft of the NCW sub-committee on Child
Rape (1993) and the Law Commission proved to be open and receptive to
(.
I
I
16
several of these suggestions. Most significant was the LCI’s own conceptual shift
from “rape” to “sexual assault” in any proposed amendment, a view consistent
I
with the larger trend in sexual assault laws around the world. Unfortunately some
outstanding areas were left to be considered in the subsequent draft proposed by
(
the LCI which were responded to. While some of these were incorporated into a
final draft forwarded to-the Ministry of Law, Company Affairs and Justice on
(
25.3.00, a full copy of the R.O. responses was not attached to the final
(
submission.
Below is a summary of areas of key areas of agreement between the LCI and
1
R.O.’s and those areas which persist as outstanding issues in the LCI proposal.
1
As
the
final
draft
has
already
been
forwarded
to
government,
comments/suggestions/ideas are invited on those areas which require further
clarification to be submitted to the government.
V
(
I
i. Key areas of Agreement:
a. Changes in the Indian Penal Code
1. Changing the language of sexual offenses from rape to sexual assault so as
to cover various forms of sexual assault beyond penile/vaginal penetration.
i
2. Punishment of sexual abuse of young persons in a position of dependency to
others.
3. Criminalising sexual harassment
4. Deletion of section 377 IPC (Unnatural Offenses)
b. Changes in Criminal Procedure Code:
1. Sensitive procedures for recording of statement of female sexual assault
complainants
i
(
17
(
(
2. Presence of relative/friend or social worker of complainants choice to be
(
allowed for recording of statement of male under 16 or of a woman
complainant
<
3. Specific procedure for medical examination of a complainant and of an
accused
f
c. Changes in the Evidence Act:
1
Character Evidence of a woman’s removed (deletion of 155(4))
2. Cross-Examination on a complainant’s previous sexual history, character or
conduct, not permissible
(
II. Key Areas of Disagreement:
/
(
7. PROCEDURE/TREATMENT OF CHILD SEXUAL ABUSE CASES:
R.O. Recommendation:
f
a. To ensure children are not subjected to the trauma of adult yardsticks in the
process of a criminal trial for child sexual abuse, the R.O.’s suggested
amendments in the existing law ought to consider the following:
(
{
> Ensure an appropriate and safe environment in which a child can depose.
> Record a child’s statement (in the presence of a child support person) at the
(
earliest possible time. For this purpose, permitting use of a videotaped
t
interview of the child’s statement.
(
(
> Allow a child to testify via closed circuit television or from behind a screen to
obtain a full and candid account of the acts complained of
> The cross-examination of a minor should only be carried out by the judge
based on written questions submitted by the defense upon perusal of the
(
t
(
IX
' testimony of the minor with sufficient breaks should be given as and when
required by the child.”
> Establishing special courts to address sexual assault with specially trained
personnel
Law Commission Response: The said suggestions were viewed largely as
“impractical” by the Law Commission in its present report. However, in response
to the first suggestion, the Law Commission has, suggested the following proviso
to the section 273 of the Criminal Procedure Code:
“Provided that where the evidence of a person below sixteen years who is
alleged to have been subjected to sexual assault or any other sexual offense, is
to be recorded, the court may, take appropriate measures to ensure that such
person is not confronted by the accused while at the same time ensuring the
rights of cross-examination of the accused.”
The proposed amendment is based on considerations of “an accused’s rights to
natural justice" according to the Law Commission but fails to take into account
the larger substantive equality rights of a child which are subject to harm,
prejudice and disadvantage under the existing process of criminal trials for child
sexual abuse. It projects the rights of an accused as paramount and fails to give
any consideration to the social context of children who face child sexual abuse
which is now well-documented in India and the rest of the world. At the same
time, the said proposal fails to address existing rules and procedures which are
harmful to the interests of a child witnesses in such cases.
(
19
(
<
(
b. R.O. recommendations: On presumptions of age (which often work against
young persons who are sexually abused) bail (especially in cases of family
sexual abuse, time bound hearings (given the tender age of children involved),
(
(
(.
the presence of support persons, punishment and aggravated sexual assault
have not been addressed by the existing report.
L.C. Response: These have been largely viewed as “impractical” or to be left to
(
judicial discretion.
2. PUNISHMENT
<
a. R.O. Recommendation: It was suggested that the proviso to sections 376(1)
/
and (2) which confer discretion on the court to award a sentence less than the
(
minimum punishment should be amended, so that the Court in exercising
(
discretion to lower a punishment, should not reduce the same to less than a
(
minimum of 5 years or 7 years respectively. The R.O.’s were especially
concerned by the low sentencing outcomes in trials affecting sexually abused
children.
<
L.C. Response: “Though the representatives of Sakshi and other women’s
organisations have suggested that we should delete the second proviso to
(.
(
section 376(1) and the proviso to section 376 (2) (which confer a discretion upon
the court to award a sentence less than the minimum punishment prescribed by
the sub-sections), we are not satisfied that there are any good reasons for doing
(
I
I
20
so. Any number of situations may arise, which it is not possible to foresee and
which may necessitate the awarding of lesser punishment.... Nor is there
justification in the criticism that such discretion once conferred is liable to be
abused or that it will always be misused to help the accused.”
(
b.
R.O. Recommendation: The expansion of aggravated sexual assault was
i
(
recommended so as to include additional special categories (Pregnant Women/
Persons with Disabilities/ where grievous bodily harm is caused of sexual
<
violation stated to be as under:
(
i. “sexual assault on a woman who is pregnant” irrespective of knowledge
<
L. C. Response: The L.C. has retained the existing provision as “sexual assault
on a woman knowing her to be pregnant”
Comment: No explanation has been given as to why the element of “knowledge
!
has been retained especially given that human rights offenses are now
universally viewed in terms of the impact of an offense rather than in terms of the
intent of a perpetrator. The proposed changes by the L.C. retains emphasis on
<
the intention of an abuser over and above the impact on a pregnant complainant
which is the same irrespective of the intent.
i
(
21
(
ii. “sexual assault on a person who suffers from a mental or physical disability
(
/
(
L.C. Response:
(
iii. The Lav/ Commission has not dealt with this proposal. At most it has stated,
“while committing sexual assault causes grievous bodily harm, maims, disfigures
or endangers the life of the woman or minor.”
3. CONSENT
R.O. Recommendation: For the purposes of sexual assault, it was proposed
(
that “consent” be defined in the statute as “unequivocal voluntary agreement” by
a person to engage in the sexual activity in question
/
L.C. Response: “We are however of the opinion that no such definition is called
for at this stage, for the reason that the said expression has already been
interpreted and pronounced upon by the courts in India in a good number of
cases”
4. DELETION OF S. 354/509 IPG
R.O.
Recommendation: With the expanded definition of sexual assault,
outdated Sections 354 (“criminal force with intent to outrage the modesty of a
woman”) and 509 IRC (insulting the modesty of a woman”) ought to be deleted.
k
(
(
22
Law Commission Response: has
retained both sections without giving any
reasons.
5. Marital Rape
R.O Recommendation: In view of increasingly visible rights of women,
of equality security of person, life with dignity, freedom from cruel and inhuman
treatment and discrimination as is provided for under the Constitution of India
it was recommended that
and several International laws and instruments,
married men should no longer be entitled to claim exemption from sexual abuse
of a spouse on the basis of marriage.
L.C
Response:
“We
are
not
satisfied
that
this
recommended to be deleted since that may amount to
with the marital relationship.”
Exception
should
be
excessive interference
k
(
/
(
(
I
f
Part II
The 172nd Report on Review of
Rape Laws
(Law Commission of India)
25.3.00
(
P.3
X
LAW COMMISSION OF INC!
SHASTRI BHAWAN
N£W DELHI-110001
TEL. : 333X475
JUSTICE
‘ “ «. K JUVAtt RECX3Y
Chairmen, Law Commtetlon ot India
' :
D.Q.Ko.6(3)(36V2000-LC(LS)
-J
!■■<***
RwkUnos :
1, JAN PATH
NEW DELHI-110 011
T EL. : 201
•?-
March 25, 2000
Dear Shri Jethmalaniji,
I am forwarding herewith the 172nd Report on Review of Rape Laws.
2.
In Writ Petition (Crl.) No.33 of 1997, the petitioner, “Sakshi” an organisation
interested in the issues concerning women, approached the Supreme Court of India inter aha
for directions concerning the definition of the expression sexual intercourse as contained in
section 375 of the Indian Penal Code.
The Supreme Court by its order dated 13th January, 1998 directed the Law
Commission to indicate its response with respect to the issues raised in the abov< writ
petition. The Commission filed an affidavit dated 28.7.1998 setting out in extenso the
portions of its 156th Report on the Indian Penal Code dealing with the issues in question,. In
with
the said Report, the then Law’ Commission (14th Law Commission) did not agree v-.
— the
viewpoint of the writ petitioners except in certain minor respects. The Supreme Court: ~was
inclined to agree with the submissions of the writ petitioners that the contents of the 1156th
Report did not deal with the precise issues raised in the wnt petition.
4.
On the directions of the Hon’ble Court, the petitioner drew up a note containing the
precise issues involved in the petition. The Commission was asked by the Hon ble Court b)
its order dated 9th August, 1999 to examine the said issues afresh. The Court observed that
the issues needed a thorough examination. By the said order dated 9th August, 1999, the
Hon’ble Court requested the Law Commission ‘To examine the issues submitted by the
petitioners and examine the feasibility of making recommendations for amendment of the
Indian Penal Code or deal with the same in any other manner so as to plug the loopholes .
i
A copy of the draft of comments prepared by the Law Commission was thereaiter
5.
forwarded to Sakshi inviting their views thereon and for suggesting changers of a procedural
nature, whether in the Criminal Procedure Code or the Evidence Act. Later on, three other
organisations, namely. Interventions for Support, Healing and Awareness - IFSHA, All India
Democratic Women’s Association - AIDWA and the National Commission for Women
NCW also presented their views on the proposed suggestions.
$
6.
After detailed discussions v/ith these organisations, the Commission has
recommended changes for widening the scope of the offence in section 375 and to make u
gender neutral. Various other changes have been recommended in sections 376, 376A a;
376D. We have also recommended insertion of a new’ section 376E dealing with. unlawTu.
i
>■
$
\
■■3
a
JUSTICE
P. JUVAM RIOOY
Chairman, Law Conmlwfon of India
e
IAW COMMISSION OF INf :
SHASTRI BHAWAN
NEW DELHI-110 001
TEL : 3384475
FUeldenc* :
L JANPATH
NEW DELHI -110 011
TEL. : 3015465
4!
*
A
sexual contact, deletion of section 377of the IPC and enhancement of punishment in section
509 of the EPC. In order to plug the loopholes in procedural provisions, we have also
recommended various changes in the Code of Criminal Procedure, 1973 and in the Evidence
Act, 1872.
The Hon ble Supreme Court forwarded vide its order dated 18.2.2000 the comments
of the petitioner on the Response and Recommendations of the Law Commission of India for
consideration. The Commission accordingly considered those comments and submitted its
further response and recommendations dated 14.3.2000 to the Hon’ble Court. The Report
being forwardedI now also includes the said further response and recommendations dated
14.3.2000.
J he present Report focuses on the need to review the rape laws in the light of
increased incidents of custodial rape and crime of sexual abuse against youngsters. The crime
of sexual assault on a child causes lasting psychic damage to the child and as such, it is
essential to prevent sexual abuse of children through stringent provisions. The UN
onventions and various constitutional provisions also underline the need for protecting the
c d from all forms of sexual exploitation and sexual abuse. This Report aims at the
attainment of these objectives.
With regards.
Yours sincerely.
Shri Ram Jethmalani,
Minister for Law, Justice & Co. Affairs,
Government of Indi?.’
Shastri B ha van.
New Delhi
(B.P. Jeevan Red-
<
<
<
(
(
INPEX
(
<
(
SI.NG.
t
CONTENTS
PAGE NO.
•t
Chapter One
Introduction
1-7
■?
Chapter Two
views invited on proposed
prov isi ons
8-• 8
Chapter Three
Changes recommended in the
Indian Penal Code, 1860
19-38
Chapter Four
Changes recommended in the
Code of Criminal Procedure,
1973
39-68
Chapter Five
Changes recommended in th
Evidence ^ct, 1872
Chapter Six
H i see11aneous suggesti ons of
the "Sakshi"
a '• - 8 2
Chapter Seven
Conclusion
83-108
A nr? ex Li re-A
Affidavit filed by Sakshi
dated 03.08.i999
-■ '- i 8)
An ne xu re-8
Amended draft on the relevant
sections of IPC by the La~
Comm i s s i o»*», f o r w a r d e d to
Sakshi on 27,8.99 for
discussion
B( i -’O’
An tie xu re-C
Copy of handout given by
Sakshi
C(1--0 ■
Annexure-D
Copy of suggestions by Sakshi,
IFSHA and A1DWA dated 13.9.99
D( 1-6 •
Annexure-E
Copy of suggestions by
Nat i on a1 Commi s s i o n f o r
Women dated 17.9.99 and letter
N o. J S / N C w / l C / N e t w o r k / 9 9
oared l-i.i0.99
E( 1--)
Annexure-F
Extract of section 4G9B of
the Crimes Act, 1900 (New
Soutfi Wales) and
recommendations of the New
S o u th w aie s Law Commi ss ion
pertaining to it made in its
Report 87 on F.eview of sec-tic”*-1098 of the Crimes Acr 1900
(NSW) (NO . ’998 )
-• 1-7 ♦
(
■4?
(
i
(
(
<
■*.
(
<
(
(
(
(
<
(
(
(.
(
t
(
I
£
5
Q
CHAPTER ONE
Introduction
Background
1999 made
Under an order dated August 9,
1.1.
(Crl )
in
Writ
No.33 of 1997, the Supreme Court of India
5
Peti tion
>
requested the Law Commission "to examine the issues raised
by the petitioners and examine the feasibility of making
for amendment of the Indian Penal Code or
the
deal with.the same in any other manner so as to plug
recommendat1 one
loopholes.”
in the issues concerning women, had approached
i nterested
a
of
aforesaid
the
wi th
India
Writ
praying for (a) issuance of a writ in the nature
Peti tion
of
Court
Supreme
the
organisation
an
’Saksh i’,
petitioner
The
1.1.1.
declaration
di recti on
declaring
any
or
other
writ
appropr i ate
or
inter alia that ’sexual intercourse’
as contained in section 375 of the Indian Penal Code shall
as
penile/vagi nal
penetration,
penile/anal
such
include all forms of penetration
penile/oral
penetration,
penetration, finger/vaginal
and
object/vag inal
penetration
f1nger/anal
and
penetrat i on
and
(b)
to
consequential writ, order or direction to the
r
in
the
i ssue
a
respondents
Writ Petition and to their servants and agents to
register all such cases found to be true on investigation.
7.
1.1.2.
Law
Writ Petition.
Commi ssion
not made a party to the
The Supreme Court however directed the Law
Commission, by its Order
1
was
dated
1 3 th
January,
1998,
to
i
t
c
indicate its response with respect to the issue© raised in
the said
(
The
Law
affidavit dated 25.3.1998 brought to
C
f
(
Petition.
Writ
Hon’ole
Commi ssion
in
its
notice
of
the
the
Court that the 156th Report of the Law Conxni ss ion
on the Iridian Penal Code had dealt,
the
wi th
inter alia,
zt
<•
(
rai sed
issues
in
the
but since the said
Writ Petition,
Par 1i ament,
the
of
matter may be adjourned by a few months.
Meanwh i1e,
The matter was adjourned by three months.
af oresaid
Houses
the
Report was not yet placed on the table of
the
of the Law Commission was placed on the
Report
•t:
table of both the Houses of Parliament.
Law
Commissi on
Thereatter,
the
filed its affidavit dated 26.7.98 setting
X
o u t i n e x ten s o t hi e port i o n s o f
the
with the
Suff ice i t to say that by
in
question.
and large the then Law Coromission
(
di d
(
not
( 1 ^th
deali ng
Report
said
Commissi on}
Law
agree with the viewpoint of the writ petitioners
except in certain mior respects which would be
indicated
f
at the
(
the said affidavit and the affidavit filed by the Ministry
appropriate
of Law, •justice and
11 is after considering
stage later.
Company
A ffa i rs ,
Hon’ble
the
that
Court passed the aforesaid order dated Sth August,
1 999 .
(
The
T.
of
order
the
Court
records
t rtS
statement
of the learned counsel for the writ petitioners
that
contents
the
Commission
of
the
were
Lnown
to
t.
tr»e Report C T u
issues raised in the
the
•5
Hon’b•e
co’? rise 1
• 56th
the
Report
petitioners ,
deal
the
Law
but
s i nee
-of
’ T z*.
the precise
a request was made
the
pet t i or.er
to
seek
by
the
consideration of the issues by the Law Commission ^n^
Government of India.
The Court was inclined to .agree with
the said submissions.
The Court also noted that the 156th
was submitted by the Law Commission prior to these
Report
11 £
J
the
Report
said
that
further
issues being referred to the Commission and
the Law Commission did not in terms
of
deal with various aspects of the issues raised in the 'writ
Petition.
o r der
The
the Hon’ble Court,
suggestion
P e r «j s i n g t h e s a me ,
the Court asked the Law
examine the
i series
sai c-
af resh.
before
Ch ■' rf«'an
cons i deration.
•<« T
was
A copy of the
co
■prec‘se
to
the
Law
of
the
a I so
observed
Commission
•_aw
the
that
C omm is s i on m a y,
if so advised, cal 1 upon the petitioner co
assist
SUCf*
in
appropriate.
Trie
■; ssues,
the
as
manne r
thorougfi e xam i n at • • jn".
the
Court
• he
t n •' a - m«‘>»■» t ri s w i c h i i ?
;,4
Af ter
a request to place tne same
Law Cor',n‘'
the
the
Comm i ss i or!
with the appendix ano affidavit were sent
•Sec retary,
in
involveo
o t h e r ■ c o n !*« e c te d i s s u e s.
as
the
at
did d’*aw
the petitio‘
up a note ooritai rir.g rpe precise issues
Writ Petition
that
r eco r ded
further
Co^mo ss i on
was
e.«pec ted
Commi ss ion
thou grit
Ouserved,
"need
according 1y
matte r
was
wh ■; ch
pe rioc
submic
a
its response to toe
Hon’ble Court.
. J. 4
The o‘'de-* of the Hon’ble Cours was received by t ••'! e
Sec ^eca>’/
befO’’e the Cha.i rr-a---.
'•
■ 9 .o. S9
P • a c e •j
y
(
1.2.
/ &
<
by
"Precis*? issues" .- The ’precise issues’
the
petitioner
the Court and which have been
sent to the Law Commission for consideration
f.
into three
(
before
parts
(Annexure-A).
"Precise issues submitted for
■v-
Commission and
(.
submitted
are
divided
Part I carries the title
the Government of India".
the
of
cons ideration
Law
Part II carries
the heading "Existing inadequacies" and Part III is titled
Suggestions for amendment to the Indian Penal Code".
shal 1
set
c«u t
in brief the substance of the submissions
made in all the three parts.
(
1.2.1.
Part I: Precise issues submitted for consideration
of the La^ Commiss'dan and the Government
(
of
India.-
(1 )
Hav«ng regard to the widespread prevalence of child sexual
(
abuse, woo 1 d it not be appropriate to include all forms of
penetration
such
peni1e/ora1
penetration,
penile/vagi nal
penetration,
penile/anal
penetration,
<■
f inger/vagina
object/vagi nal
and
finger/anal
penetrati on
wi thi n
penetration
the
meaning
and
of
the
i
ex p rass ion ”pane t r at i on“ in the explanation to section 375
of the
IPC.
*oenetration’
The
restr i cti ve
i n •- hi e E x p 1 a n a t i o n t o
i nterpretat i on
section
375
of
defeats
the very purpose and object underlying section 376(2)(f);
< 2)
(
Is it nut wrong to classify the penetrative
of
abuse
a child below the age of 12 as unnatural offence under
secti on
1PC or as outraging the modesty of a woman
under
section
354,
depend in^
upon the 4 type ’ of
(
penetration ignoring the ’impact’ on such child.
b
"5
5
(
30
<
c
©
£
(3)
not
it
Is
wrong
treat
to
conti nue
to
non-consensual
penetration
upon
such a child as offence
under section
37 7
par
wi th
on
I PC
consensual penetration
certain
forms
of
consensual homosexual sex)
(e.g.
where consenting party can be held liable as an abettor or
otherwi se.
1.2.2.
’Appendix
to ■Part I contains three
appended
A’
notes, which we shall refer to in seriatum:
Note 1: The
Explanation to sections 375 and 376 says that
"penetration
is
sufficient
intercourse necessary
to
to
the
the
sexual
of rape”.
By the
constitute
offence
Criminal Law (Amendment) Act 1983, raping of a woman under
twelve years of age
imprisonment
for
was
made
punishable
with
rigorous
a term which shall not be less than ten
years but which may be for life in addition to fine.
such
a
meaning
In
situation, it would be appropriate to broaden the
of
penetration
penetration
to
include
not
only
vaginal
but also anal and oral penetration as well as
penetration by any part of the body or by any object.
Note 2: In a vast majority of child sexual abuse cases the
•o
sr
penetration is
penetration
ocher
causes
than
lasting
In such a situation, a
penile-vaginal .
Such
psychic damage to the child.
restr i ctive
mean ing
penetration is likely to prove inadequate.
attached
3/
o
The 156th Report of the Law Commieaion ha©
Note 3(a):
penile/oral penetration and penile/anal
that
recommended
penetration be covered by section 377
f
f Inger
IPC and that
penetration and object penetration into vagina or anus can
severe
be adequately covered under section 354 with a more
*
This recommendation requi res reconsideration.
punishment.
Such
restrictive view fails to take into consideration
a
very
As
known to them.
r
of
fact,
rape
viol ate
or
degrade
matter
a
of children is by persons
abuse
sexual
the
of ten
hum i1i ate f
i ntended
to
sexua11y.
It adversely affects the sexual
wome n
autonomy of
rea11y
is
woman
a
and
i ntegrity
aforesai d
The
children.
and
that
fact
further
the
several forms of child abuse and
recommendation of the Law Commission therefore defeats the
1983
which
clause (f)
inserted
thereof
recommendati on
a 1 so
sub-section
Act,
(Amendment)
very object underlying the Criminal Law
arid in particular
(2)
above
The
376.
in
section
does
not take into account the fact
that a child of tender years can not discern the degree of
i
(
di f ference
in
terms
wh i ch
or i f i ce
i nstances
are
of
(
penetrated.
(
illustrate the aforesaid point.
Cei tain
of
then
hers
is
out
to
set
<
i
(
Under this note, the petitioner has sought
Note 3(b):
the
to argue in the light of
Note
3(r.)
t ha’.
the
36 th
i.
■equi res
(
(
i
r<• r<si Jerat ion .
i nstances
mentioned
under
Report of the Law Commission
75: i -vS-.
c; ^'.-instances . set
(
s
(
&
Existi ng
Part II:
Inadequacies
Various
out in Appendix-B to Annexure-A (a copy of
the submissions of Sakshi including Appendix-B is encloseo
herewith) to this part,
to
amount
rape
ano
the petitioner argues,
would
perhaps not even to natural offence
under section 37 7. or to outraging the modesty of
C'
under section
35-,
not
i r.
v i ew
of
a
woman
the existing law.
They
<
might Just be a limited form of assault or criminal force,
if at all, though all the said •nstances are
nature and
It
d i S t U •' b i f’i g .
grave
a
is
therefore
(
necessary that there should be a rethinking on this
i ssue
and
more
the
P rec i
of ferice
' s e x u a'
(
assauit’
shou1d
be
(
ly defined a-’-d its parameters i nd i rated.
(
Part III
■? . -
Sugge st i <•«■? s
for
amendment
i
imji an
Penal
parr
-r - - - •
sets
amendments proposed by the petitioner.
the
severs?
Suffice it to
f
say
that they seek to substitute the definition of ’rape1 with
*
the
t
neutral.
i-
fhe expression ’ co r< sent ’ is also sought to be defined.
de f i r» 11 i on
of
’sexual
assault’
and make it gender
•he object is to widen the scope of the offence.
sec *_ '* O r .
s e > '.i a * assau1t
sect ion
~ith the heading 'Aggravated
sought to be created.
seeks to synthesise the
A
of fen e s
now
This new offence
categor i sed
unoer
sub-section (2) of section 376 as we 11 as sections 3768 to
3T60 .
t
.3
i
(
35
8
©
©
&
CHAPTER TWO
<
<
VIEWS INVITED GN PROPOSED PROVISIONS
1
(
(
2.1.
UN
Severa 1
cases of child abuse have all over the world have
Convent ion
and
Consti tutional
caused grave concern to the humanity.
on
Convention
(
Ri ghts
Article 34
Ch i 1 d
the
provisions.-
of
the
(20 November 1989)
ordains the Member States to protect the
ch i 1 d
from
a1 1
forms of
sexual exploitation and sexual abuse.
For these
purposes,
State
take
appropriate
Parties
are
requi red
to
al 1
nationsi, bilateral and multilateral measures
to prevent:
(
(
(a)
(
The
inducement
or
coercion.
of
a child to
engage in any unlawful sexual activity:
(
(b)
r
r
The
explci tative
use
of
chiIdren
in
prostitution or other unlawful sexual practices;
(c)
(
The
exploitative
use
of
chi 1dren
in
po rnographic pe r f ormances and mate rials.
(
i
Article 3S(-"’ of the Const i tut ion of India,
the
Di rective
Prine iples
of
State
State to direct its policy, inter alia,
that
(
Ch i 1 df'iOOd
and
youth
are
e >. p 1 o 11 a 11 on and a g a * •y s t mo r a 1 and
ig t
(
there
assa-j 11.
€
€
towards
securi ng
protected
d g a i n s ■_
mater i a 1
abandonment.
neeo
g '‘eat
tr.*.isting t’rovisions ’‘elating
i
Policy requires the
to
C: h i 1 d
sexua1
a Du se
9
$
consideration
issues’ submitted by the
’precise
the
of
Cou Ft
certain
£
and
a 1 so
western
Commission
t a k 1 r» 9 i n to ac c ou • t t. h e laws '»o •' c e
prepaFed
a
draft (Annexure-Bl conta■«ning the
37 5 ,
a
suggested
the
the offence of * rape’ u n dec s e c t i o n 375 w i t b?
’sexual assault’
in the vagina,the
a»"”_‘S
including all
by
C’F
*.j f e 11’* r a. of
section 37 5.
Sections
whetF’er
a f« c» t ’n e < ■,
a
hv
•Section 376
i s,
change
1 -I ghv.
accordingly, ff>od i •' i ed
oenc e
k rips ope^etFation
n object.
human body or b
section
section,
•"•e w
sectic«ns is to subst■’ t*.• te
The purport of these ne
part of
37 6A ;
37 6,
376C, 37 ar, 1 n subst i tutiOf’’ of the ex ■? st’• ng sections
to 3760 and also
of
Law
the
subject,
th i s
on
countries
prciposed new sections, nameIy, sections
376B,
Hon’b'e
the
petitioner and in the li^ht of the order
5
a
Draft of t,he Law Commission’s proposals.- On ’
2 2
arid 3~60 are
37 6C
376 A,
retained substantially except adapting them to the changes
made in the offence under section 375 and a fe^ changes
the matter of punishrnent.
is sought to
376E with the title ’unlawful sexual c cotact
be created.
re
*5r.
Besides the above, section 3 / 7 is propc»sed to
deified
■jF:r:ecessa»‘ y
provisi ons.
Section 5uS of
be
amended
licijt C’f the <“»Feced'• ng
7 pc
a 1 so
s«j'.»gh t
be
to
providing higher puFiisljment where the offence set
o u t i (■’ t h e said s e c t i on i s c omm i 11e d w i t h s e x u a 1 intent.
2x2.’:
v '< »2-
-ted . -
sairj craft
COPy
foru/arded to Sa^Sf'’’ on 27. <?.SS a’"‘d they
• 3.S . S3.
*v
section
« new of fence, name'y,
11
was
i Fid i ca ted
ted
a
that
the
(
<<
©
( <
not
wou 1 d
discussion
be with respect to the draft
only
prepared by the Law Cocmnission but that they shall be free
to put forward their other suggestions and
idea^,
any,
if
and further they could also bring representations of other
o r g ani s at ions,
women’s
along
with them, for discussion.
(
(
Accordingly,
three
persons,
(Di rector,
Sakshi1,
Ms
IFSHA)
Democrati c
Women’s
behalf of
I nd i a
the
AIDWA) participated in
respect i ve organisat ions.
thei r
organisat ions hav
(
(All
Si ngh
Ki rti
Ms
Associati on
<
{Di rector ,
Purewal
Jasj it
Kapu r
Interventions for Support, Healing and Awareness
and
(
Naina
Ms
name 1y,
apart
(
wr i t i ng
(
Supreme Court.
also put forward their
from
what
d i scussion,
All the three
in
suggestions
Sakshi had filed before the
L
We may mention that hereafter whenever we speak or
(
or refer to Sakshi, i t me ans not on1y t h e Sakshi, but also
the
two
other
women’s
organisations,
and Awareness) and
( .
(Inte rvent ions
(
AIDWA (A 11 I nd i a Democrat i c Womten ’ s Assoc i at i on)
as
for
Support,
Healing
I FSHA
name 1y
as
we ! 1
the National Commission for women (NCW), who were aj so
hea r d on the p roposa 1 s cont a i ned he <’e i n.
2
views of the “Sakshi" on the IFC provisions.- On
the first day of hearing (i
I
3
S . S? ) i
e x £• r e s s e d their aporeciation of the draft prepared by
(
Law
•
1
r
the said three persons
Commi ss i on
stating that it was
a substantial advance
2)6
11
ik
on the subject and met many of
af ter
Even
ideas.
their
60,
•v
a good amount of discussion, they came forward with
the following changes in the said draft:
?
in
(a)
The age of the person assaulted - referred
clause
“sixthly" in section 375 and in Explanation (2) to
•section 375 and in section 376( 1 ) (where the
w i fe
referred
is
to)
ShOU1d
be
to
the
of
age
raised to sixteen.
Raising the said age to eighteen may not be appropriate.
A prevision must be inserted to the effect that if
(b)
the person assaulted gives his/her age,
presume it
to t-e so.
the
shal 1
court
A p r o v ‘i s I on on the lines of section
iidA r.f trie Evidence Act be suggested.
In the definition of
375,
there
be
should
sexual
an
assau1t
in
section
that
saying
explanation
I
penetration
shal 1
extent
(
whatsoever,
inasmuch the penetration is never complete in
(
penetration
mean
any
to
t
the case of children.
(
til at
says
(
by a man with his own wife, the
(
to
(
sexual
(
be
(
(which
zi.xpl anation (2} to draft section 375
• d)
i ntercourse
sexual
amount
wife not being under 15 years of age, does not
sexual assauIt)
T?:
x;
ShoU1d
deleted.
be
Forced
intercourse by a husband with his wife should
any physical violence by a
an ?ffence jus
treated
as
h US ba fid
against
Foil owi rig
the
equally
treated
an
offence.
t he
wife
is
same
1og i c,
they submitted that the words
t
\2
(
C
own
“unless the person subjected to sexual assault is his
(
under 15 years of age in which case he
not
is
and
wife
(
(
(
(
description
shall be punished with imprisonment of either
f or
<
term which may extend to two years or with fine or
a
(
with both” in section 376(1) of the Law Commission’s draft
<
[adaptation of the existing section 376(1}] should also be
(
de 1 eted.
said,
Section 376A should also be deleted, they
on the same reasoning.
(
(
<f - X«
first proviso to draft section 376(1} (in
the
In
*
the draft of
(
(
(
(
Commiss i on},
the
orandfather
words "a person holding position of
ocher
person
and
‘’the
f ather,
be substituted with the
should
brother"
words
the
vis-a-vis
trust
the
to add an explanation saying
furcher
that the said expression shall
include father/step father,
brother/step brother, teacher,
i nstructor,
(
guardian
and
(
the 1ike.
(
(
Consent
should
be
defined
to mean “unequivocal
(
voluntary agreement”.
(
2.3.1,
A
copy
of
the
handout
by
g i ven
the
persons
(
mentioned in paragraph 2.2.1, supra of
this
chapter,
Oh
the first date of meeting is placed at Annexure-C.
4
(
views of the “Sakshi” on the
relevant
prov 1 s ons
the Code of Criminal Procedure and the Indian Ev i denee
(
Act. - At the end of the discussion on the
was
(
(
(
first
day,
indicated to the persons mentioned in para above that
i
[
I
13
£
any
If they wished to suggest
f
whether
nature.
procedural
a
of
changes
in the Criminal Procedure Code or in the
date,
next
Evidence Act, they could send the same by the
c
specified
which was
Though the
17th September 1995.
as
“precise issues” did not
of
speak
in
changes
any
the
&
laws (and was confined to amendments to Indian
procedural
Penal Code only), we
changes
certain
were
are
in
the
Cr PC-
Evidence
and
Act,
the
underlying the changes in the substantive law I FC
purpose
may not be fully served.
suggested
to
suggestions,
the
1 aws.
unless
that
si mu 1taneous1y
effeeted
relevant provi sions of the
op in ion
the
of
■ Sakshi
It is for this reason that
f orward
come
to
purpose
under 1ying
changes
1 aws
to
in substantive
Accord i ng 1y, they came forward with as many
suggest ions
the i r
wi th
i f any, f o r a me n d me n t o f p r o c e d u r a 1
we
as
14
Proposing amendmerits not only in the Crimina 1
Procedure Code and Evidence Act but
also
Penal Code
procedural
(A. one x u r e~ D).
The
in
the.
Indi an
amendments
suggested by them are to the following effect:
The
(1 )
8-th
Feport
of
the
Law
suggested chat uyhere the statement of a girl-victim
twelve
years
woman police
of
age is recorded,
of ficer
or
by
a
had
Commissi on
be 1 ow
it should^ be done by a
woman
belonging
to
an
organisati»Z'n interested in the cause of women or children.
The
said
r e c omme n d a t i on
changes set o<.>t i
should be accepted with certain
their note.
t
14
■v
t
z
section
The present proviso to sub-section (1) of
(2)
160
the
of
Code
Procedure
Criminal
of
should
be
age
of
substituted by the following proviso:
t
under
“Provided that no male person.
(
si xteen
vears
or
shall be required to
woman
a
the
attend at any place other than his or her home
place of his or her choice."
(
a
new sub-section, namely, sub-section (6) should
A
(3)
the
the
that
effect
(
be inserted in section 160 CrPC to
(
statement
<
or a female, during the course of investigation, should be
(
recorded only in the presence of a relative, a friend or a
t
soci al worker of the person’s choice.
of a male person under the age of sixteen years
<
t
•>)
A new sect ion,
name j y,
section
1 64A
shou1d
be
inserted in the Code of Criminal Procedure stating that as
soon
(
a case of sexual assault is reported to a Police
as
person,
he shal1
sexual 1y)
exami red
Pract i t i<:• ner and
after
have
due
the
medical 1y
that
examination,
such
a
med • cal
reg i stored
medical
P< acti tioner
shal 1
This proposal is a
siight
the recommendation contained in the 64th
sepoft of the Law Commission.
}
by
assaulted
prepare a report setting out the
various specified particulars.
modi ficat ion
(allegedly
person
V
(5)
G
should * be
Sub-sections (1A), (IB).- (1C) and (10)
In
Inserted
section 63 of the Criminal Procedure Code ae
$
recommended by the 84th Report of the Law Commission, with
V.--
necessary adaptations.
(6)
sexual
While granting bail to a person accused of
<
one of the conditions which should be imposed by
assault,
the court shal1 be that such person shall not
be
in
the
proximity of the person assaulted.
£
In
(7)
case of sexual assault, there shall be no
the
interference with or disturbance of the natural habitat of
the person sexually assaulted by or through
the
criminal
Justice process.
c
(6)
The
investigation
and
of sexual offences
trial
concluded
should be time-bound and should be
within
six
(
months.
The expression ’social worker’ shall be defined to
(9)
mean
a
woman
i nterested
in or working for the cause of
women and/or children and who is familiar with
issues
of
violence against women and children.
t.
(
(10)(a) A
new
section
Evidence Act stating
aggravated
sexua1
1 14B
that
should be introduced in the
(
for
(
where
in
a
prosecution
assault under sections 376A to 376D of
the IPC, the question is whether the person
so
assaulted
A
$
e
(
£
(
(
(
C
to
consented
z (
G
and where such person states before the
it
(
court that he/she did not
(
presume It to be so.
shal 1
court
the
consent,
so
(
(
■-v-
(
(
t-
(.
•S
ravish
to
prove
should be deleted.
immoral character)
In
(c)
■
section
name 1y,
clause,
to
prosecutrix was of generally
the
that
attempt
or
(which permits the person accused of rape
(
.?
to the Evidence Act
155
section
in
Clause
(b)
146
of
(4)
clause
Evi dence
the
shou1d
be
sexual
Act,
another
added
stating
assault,
it
(
expressly that in a prosecution
for
(
shal 1
adduce evidence or to put
not
be
permi ssible
to
questions in cross-examination
person
the
of
assaulted
with respect to his/her previous sexual history, character
or conduct whether to establish consent or otherwise.
(d)
The absence of a medical report in the case
sexual
assault
of
a
against
the
There should be a provision either in the CrPC
or
not
shal 1
be
a
factor
complainant/pereon assaulted.
r
di)
in
the
Evidence
Act
to the effect that a minor who has
v.
c
i
been assaulted sexually, should not be
the
mi nor.
taken to provide an appropriate and
which the child can recover.
i
(
to
give
his/her evidence in the presence of the accused as it will
certainly traumatise
t
required
Steps
saf e
should also be
env1ronment
1n
A!
A2
i
i
>
c
The
(
opportuni ty
€
&
should
assault
sexual
€
be*
chi Id
who
recorded
at
relative or social worker whom the
For
proper
i (r>p 1 ementation
earl lest
(
trusts.
mi nor
above suggestion,
the
of
(
the
friend,
a
is subjected to
in the presence of a
judge/mag istrate
a
by
a
of
testimony
videotape/circuit television should be provided.
Further,
the
questions
where the child is to
she *51
handed
be
over to the Judge who shale in turn put
those questions
evidence
of
cross-examined,
be
the
mi nor.
recording
Wh i 1 e
the minor, appropriate breaks should also be
given to make the minor feel comfortable.
Al 1 cases of sexuai assau1t
spec i al
courts
which
shal 1
Prosecutors and counse1 lore,
shou1d
manned
be
by
tried
be
by
Judges,
’specially trained/sensitiseo
to issues of sexual assauIt’.
/
4
V «
4
\
}
A. ne^ offence should be created
by
appropri ate 1y
amending section 166 IPC making it an offence for a public
servant
to
disobey
the direction of law prohibiting the
summo»■« i r«g of a mi nor/woman at any
P1 ace
other
than
her
place of choice and also a public serva^'t- who disobeys any
di rect ion
1
4
law with respect to the manner in which the
investigation concerning a minor shall
2.-. 1 .
be conducted.
Discussion or the suggestions of
•kSakshi”.- Each
in t i * e C omn • i s s i o ’■
the presence of
s a t i C' n s
three persons
mentioned in para 2.2.1
e p r e sef't i ng c*f"gan * ~
above, i n the light of the
(
c
r
18
i
(
(
(
84th Report of the Law Commission as
<
Report of the Law Comml68ion.
<
the
(
recommendations set out in
(
(
af oresa id
suggestions
wel 1
the
as
154th
While we agree with some of
(as would be evident from the
the
succed i ng
chapters),
we
find ourselves unable to agree with all of them.
4
2.5.
V i ews
inv i ted.record
of
the National Commission for tyomen (NCW)
i he Law Commission would also
that
put
on
before finalising their recommendations,
the
Law Commission had also sent
Commlssion
(
for
Women
them
a
1etter
to
to
the
National
(NCW) enclosing the aforementioned
draft (prepared by the Law
invi ting
wish
Commission)
(Annexure-B)
and
to come and have a discussion with the Law
Commission on 16.8.99.
The National Commission for
deputed their Joint Secretary, Ms Leena Mehendale.
Women
One of
the Members of the Law Commission, Mrs Justice Leila Seth,
heard
the
Joi nt
Secretary and also asked her to put her
ideas/suggestione in writing.
set
of
suggestions
Secretary.
A
copy
herewith (Annexure-E.
k
f
<
Accordingly, the NCW sent a
in
wr i ti ng
of
the
said
si gned
by
the
Joint
proposals is appended
IS
(
<
<
(
£
c
CHAPTER THREE
(
Changes recommended in the Indian Penal Code.,—1660
(
4
Substitution of definition of * rape * by definition
3.1.
of 'sexual assault* .
on 1 y
Not
are
be i ng
to forced sexual assaults.
Forced
women
increasingly subjected
boys,
young
but
to a boy than to a girl subjected to such offence.
intercourse too.
used
oral
boys
and
gir1s
young
main1y
Sakshi have also
for edification of the foreign tourists.
for
scope
the
w i den i ng
of
the offence
section 375 and to make it gender neutral.
Western countries
have
al ready
necessary to include under
thi s
(
1
(
kinds of sexual acts and sexus=
all
(
being
are
perversions in certain tourist centres like Goa
recommended
sexua •
Accord ing co some social activists li'se
Ms Sheela Barse, both
regu1 ar 1y
to
subjected
Boys and girls both are being
(.
psycho 1 og ca •
and
trauma
sexual assault causes no
damage
i
(
<
(
(
(
Some
(
It is also
<
{sexua'
(
done
th i s.
new
def i ni tion
not only penile penetration but also penetratnon
assault)
(
by any other part of the body (like finger or toe)
any other
object.
section 375 has
Expla^ation
penetration
to
been substituted by us to
say
a-' v
(
extent
be deemed to be penetrat'•on tor
(
This is so provided fo--
<
whatsoever
shal 1
the purpose of this section.
that
reasof'* that in the case of children, penetration is ••are
c on-p 1 e t e
for physical r'easons .
is concerned,
e nave retained the existing Exceut-O’-’
on 1 y
made
change
I
be i ng
in
tl'.e
matter of age:
na^ e
<
i
A5
20
raised the age of the 'wife’ from fifteen to sixteen.
The
in
the
age of the person assaulted sexually referred
z
clause
i
f ifteen.
has
“sixthly"
raised to sixteen from
been
also
to
i
We
3.1.1.
manti on
also
may
that
the
redraf ti ng
in
section, we have stuck to the existing provision as far as
This
possi ble.
for
is
the
these
s i nee
that
reason
provisions have already been interpreted and elucidated by
the decisions of the courts,
express ione
rather than use new
(
and
In
word ing.
new
clauses (a) to (e) in section 375, we have drawn
drafting
<
it is better to stick to them
inspiration from the Criminal Law Western Australia.
(
3.1.2.
Substitution of existing section 375
of
the
ZPC
(
We
recommended.-
accordingly recommend that the existing
f
section 375 be substituted by the following:
(
Sexual assault means
“375.
Sexual Assault:
(a)
penetrating the vagina (which term
■
(
i.
the
(
labia
ma.) or a) ,
the
shal 1
include
urethra of any
anus
person with -
(
(
\ ■
(
any part of the body of another person
ii )
an object mart i pu 1 ated
except
he <e
4
by
another
person
such penetration is carried out for
proper hygienic or medical purposes:
(
(
i}
(
t
Q
4^
I
< 1
<«
<
(
€
(b)
5
part
manipulating any
person
so
as
of
the
of
body
c
another
to cause penetration of the vagina
(which term shall include the labia
majora),
the
anus or the urethra of the offender by any part of
4
the other person’s body;
' 4
(
(<-)
introducing any part of the penis of a person i nto
the mouth of another person;
(d }
engaging in cunnilingus or fellatio; or
(e •
continuing
sexual
assau 11
as de f i ned i n c 1 auses
(a) to (d) above
in circumstances falling
under
any
of
the
z
following descriptions :
First- Against the other person’s will.
/
Secondly- Without the other person’s consent.
/
Thi rd 1 y- Wi th the other person ’ s consent *hen sucr«
/
consent
has been obtained by putting such other person or
(
any person in whom such other
person
is
i nterested,
in
fear of death or hurt.
<
I
<
47
&
c
Fourthly- Where the other person Is a female, with
k
her consent, when the man knows that he is not the husband
of such other person and that her consent is given because
believes that the offender is another man to whom sh
she
i s or believes herself to be lawfully married.
when,
at
t '■ me
the.
unsoundness of mo'-d or
of f er-de’'
by
the
of
Fifthly- With the consent
other
person,
of giving such consent, by reason of
intoxication or the
adm i n i s t r a t i on.
through
another of any
personal 1y
t
stupe f y i ng or un^i'ioiesome substance , the other
person
is
r
understand the nature and consequences of that
unable
to which such other person gives consent.
Sixthly-
c *? n s e *"!
i thout
- "• th
other
the
w n e n s u c ?■’ o t e r p e r s o n is under
person’s
xteen years of
age.
Explanatioo:
I
Penetration to any extent is penetration for
the purposes of this section.
exceot '■ on :
Sexua1
i n l e r c o u r s e b y a m a n with his own wife,
the w i fe not being unde r s '• x teen
years
of
age,
is
wanted
us
not
sexual assault. **
f
3.1 . 2 . 1 .
sc o
e ’*’d
Representatives of
Saks.hi
the E-ception, w i t h w h i c h we a •' e
<
•j r- a b '• e to agree.
reasoning
husband causes some physical
■
€
injury to
runs
thus:
his
wife,
he
is
4
punishable under the appropriate offence and the fact that
<
(
<
he
is
husband
the
the victim is not an extenuating
of
circumstance recognized by law; if so. there is no
(
<
€
why
<
rape/sexual assault where the wife
t
15/16 years.
reason
concession should be made in the matter of offence of
We
happens
to
above
be
not satisfied that this Exception
are
should be recommended to be deleted since that may
r
amount
to excessive interference with the marital re 1 ationship.
3.2.
S , 37a . -
Mod i f i cat i on
section 376
is
substantial
changes
So
are
concerned,
far as the proposed
any
suggesting
not
<
except two and adapting the language
3 7 5.
sect i on
of the section to accord with the change in
In the light of instances coming before the courts and the
i nstances
• r.
mentioned
(while
treat!ng
prov i so)
providing
commi tted
by
the.
the
-ate prepared by Saksni,
the
have proposed addition of a
r
proVI so
ex i st ing
where
father,
to
proviso
the
sub-sec ti or-
as
sexua1
the
• i •
second
assau1t
is
or
brother, the
On the basis of
suggest i ons
grandfather
pun i shment shou1d be
made by Sakshi, we have also added the words "or any- other
person
<
r. p«? it ion of r r u s t o r a u t h o r i t > towards
be ng
the otHer persor?” af ter the words "father, grandfather
<■
r-
The
second
change
suggested by us is io the
matter
the
age
w i fe
referred
Of
sub-section
{
•: f •
i
"sixteen".
A,r
or
brother".
i
v
C
to
in‘ proposed
( - • as also of the person assaulted in clause
•
■•■:e
?.•■■■
<• a i set
i
f
(
2Ar
(
t <
<
c
these changes are:
for
The reasons
3.2.1.
in
and authority who more often than not
trust
of
persons
and
with a severe penalty the near relations
pos i ti on
(1 ) to visit
commit the offence of sexual assault on the members ot the
(<
(' i
family or on unsuspecting and trusting young persons.
have in this connection taken note of the extremely odious
and debased conduct of tf.a father of ths minor girl in tne
Sucesh dakhoo v.
( i
facts high1i ghted in
(
[ ■ SS6 (3) AD De’-hi 6 5 3
&
(
uni formity
maintain
( <
othe r young per son
(
s i xteen.
( 1 396 ) 62 OCT
663]
and
tne matter of age of wife or any
1 Ci
who
and orj~eT-s
K.C. J .
protection
speci a 1
needs
< .
3.2.2.
(
representatives of Sakshi have suggested
de1ete
(
second
the
Though
cons i de red.-
"Sakshi"
Vi ews
(
proviso
section
to
we
that
the
ShOU 1 G
376 (1 ) and the
proviso to section 376 (2) (which confer a discretion upon
the court to award a
sentence
1esser
than
mini mum
the
i
(
prescribed
pun i shment
by
the
sub-sections}, we are not
satisfied that there are any good reasons
Any
(.
of
number
s ituat ions
foresee,
may
ari se,
wh i ch
may
for
whi ch
doing
it is not
necess i tate
to
awarding
of lesser punishment than the minitnum punishment
requiring
Safeguard
that
and
agai nst
abuse
adequate and special
is -provided
reasons be mentioned
in the judgment, for awarding such lesser punishment.
is
there
di scretion
?
the
possi bie
prescribed.
3
so.
justificat ion
once
in
the
c r i t ici sm
that
No<*
such
conferred is liable to be abused or that
it will always be misused to help the accused.
25
f
3.2.3.
t
Recasting of section 376 of the IPC recomcnended .-
According 1y,
we
recommend
section
t hat-
she 11
376
be
re-cast as follows:
<
i r
O!6.
: (
Punisbment
except
in
for
■sexual
assault
provided
for
Whoever,
(1)
(
the
cases
by sub-sect ion (2),
<
commits sexual assault shall be pun i shed wi tft impr i sonment
(
of either description for a term which shall not
than
seven
be
less
years but which may be for life or for a term
{
whi ch may extend to ten years and shall also be liable
f i ne
to
tiri less t«>e person subjected to sexual assault is his
own wife and is not- ur?der sixteen years of age,
case,
he
shal i
description fo
be
(
(
wh i ch
in
punished with imprisonment of either
(
a term which may extend to three years and
shall also be liable to fine.
1
If
a position
assaulted
<
of
person
(
oy a near relative of the person assaulted,
/
or
ritr/sh^ shal -
term
the sexual assault is committed by a person in
trust
or
author i ty
towards
the
be pun’• shed with rigorous imprisonment for
which snail
•‘Ot
be
a
than ten years but -hich may
extend to life imprisonment and shall also
‘be
1iable
to
(
fine.
p rov i oed
special
t ■< a t t h e
f easr>< •_
■^enterics 07
court
may,
for
adequate
and
(
<
be *'fte .»*! t! «z*t'i e d
in'pf"i sorm^ent
in the judgmentj
for a term of less
punishment prescribed in this sub-section.
than
iifipcse a
mi n'mum
(
(
(
6/
26
( e
(
(
€
(
Whoever,-
(2)
(
€
<
< /
fa) being a police officer commits sexual assault-
(i) within the limits of
the
poli ce
station
which he is appointed; or
(
(i i )
in the premises of any station f'ouse whether
y
or not situated in the
po 1 i
station
to
Which
he
is
appointed;
(
(
(i i i) on a p rson in his custody or in the custody
ot"
a police officer subordinate to him; or
t
(
(b) being a public servant, takes advantage of his
i
official
(
pos i t i on
a nd commits sexual assault on a pe rson
in his custody as such public servant or in the custody of
( •
a public servant subordinate to him; or
(
(
(c) being on the management or on the staff
<
of
a
J a i 1 , remand home or other olac* of custody established by
I
under
(
t
5
. f
any
1 aw
for
the
time being in force or of a
women’s or ch i1dten’s inst i tution takes advantage
of f i c i a1
po s it i o n
of such Jail, remand home. place or i nsti tution;
1
L_- ICO
(
his
and comm i ts s ex u a 1 assault on any inmate
€
(
of
08 297
p<ro
t
(d)
being
on the management or on the staff of a
hospital, takes advantage of
hi s
position
official
i
and
commits sexual assault on a person in that hospital; or
(e)
commits sexual assault on a woman knowing her
to be pregnant;- or
i
(
(
(i } comnnts sexual assault on a person
when
sue h
(
person is under sixteen years of age;
(g) commits gang sexual assau1t,
shal 1
be
punished
w ■> t h rig o r o u s i m p rise n me n t f o r a te r m
which shall not be Tess than ten years but
i
which
may
be
for life and shall a 1 so be 1i ab1e to f i ne
i
Provided
that
the
cou rt
may,
for adequate ano
i
special reasons to be mentioned in the Judgment, impose
sentence
a
V
of i mp r -4 sonment of e i the r de sc r i p t i on f or a term
of less than ten years.
i
<
Whe«-e a
assau1t
by
one
person
•i 5
subjected
to
sexua •
more in a group of persons acting in
f urtherance of the i r commori i ntent ion , each of the persons
shall be deemed to
i
have
commi tted
gang
within the meaning of this sub-section.
sexual
(
assault
i
(
.
5^
2c
Explanation 2.- “Women’s or children’s institution“ means
an institution, whether called an orphanage or a home
women
neglected
(' ’
or
a
chi 1dren
for
home or an
widews1
institution called by any other name, which is established
(
( '
and maintained for the reception
(
chi 1dren.
Explanation
"Hospita1"
care
and
the
means
women
of
precincts of tne
hospital and includes the precincts of any institution for
t
ano
recepti on
the
during
persons
treatment
convalescence or of persons requiring medical attention or
(
rehabi1i tation."
(
(
(
(
0.0.
Amend me r» t of S. 3 7 6 A . -
wanted
us
Representatives
recommend the deletion of section 376A (as
to
we 11 as Exception to section 375).
(
when a man who causes hurt
(
hi s
Sakshi
of
own
wi f e
is
like any
other
person
i njury,
why
th i s:
Thei r logic was
any other physical injury to
liable to be punished for such offence
(
such
cans i ng
physi cal
hurt
(
(
should
a
husband who sexually assaults his
(
wi fe,
who
is
1 iving
separate 1>
under
a
decree
(
separation
under any custom or usage, be not punished
(
like any other person.
c
(
lesser
punishment
•Sect i on
that
provi des
a
to a husband who sexually assaults his
once
i s ar bi t r a r y and dis cri mi n ato r y.
They
sect3~GA ■ s deleted, the husband ■>
(
case would be P u ■•shed u n det
(
h i g he r pun is hme nt
(
whi ch
own wife living separately in the aforesaid circumstances,
they argued,
'•
376A,
than section 376A.
37 6( 1 ) whiCh
sue
say
A
carr•es
While we appreciate
e
<
c
(
'i
29
the force of said argument in the context of the wife
who
is living separately under a decree of separation or under
v
(
<
any
usage, we can not at the same time ignore
or
custom
<
the
the fact that even in such a case
£
In
rema i ns unsevered.
marr1 age
of
bond
while
ci rcumstances,
the
on
recommending that this section should be retained
the
statute book, we recommend enhancement of punishment under
the section.
3.3.1.
(
Modi fication
recommended.-
section
in
According 1 y ,
of
3 76 A
shal 1
section
I PC
the
376A
read as
fol 1ows:
"376A.
•Sexual assau<t b
the husband upon his wife during
separation.- Whoever commits sexual assault upon his wife,
who is living
separate1y
from
separation
under
custom
or
fo r
descr iption
a
a
decree
of
usage, without her
i
ei ther
<
term which shal1 not be less than two
(
also
<
any
consent, shall be punished
(
under
hi i m
wi th
or
imprisonment
years and which may extend to seven years and
of
shal 1
t
be liable to vine.
(
3.4.
Arnendment of 3.376B, 376C and 3760:
Having regard
to the gravity of these offences, we recommend enhancement
of punishment
with a minimum punishment of not less than
five years.
k'e have also added an Explanation which
govern all
these rbres sections.
"sexual
will
The Explanation defines
to mean any of the acts mentioned
(
I
(
in
(
(
(
i
i
c e
(
55
3Q
€
clauses (a) to (e) of section 375.
€
375
C
intercourse as defined by the Explanation to this section.
V
however
wi 11
3.4.1.
case
the
in
even
apply
Explanation to section
sexual
of
of
3760
Modifications in sections 376B, 376C and
(
the
(
recommended.-
I PC
376E
with
sha 11 read as follows:
necessary adaptations and changes,
(
sect ion
Accord i ng 1y,
<
(
(
t.
(
t
"376B.
Sexua1
by public servant with person
i nte<-course
of
(
advantage
(
seduces any per
<
public
(
subord inate
in
or
to
h i rn,
servant,
posi tion
and induces or
sexual
of
have
to
as
custody
his/her
SUCh
of a public servant
custody
the
sexua1
such
of fence
in
who is
servant
him/her,
of fic i a1
n i s/her
takes
public
in his custody - W n o e v e r , being a
i ntercourse
sexual
wi th
intercourse
not
amounting to the
shal I
be
punished
assau1t,
(
impr isonment
(
not be less than five years and which may
(
years and shall a 1 so be 1 i ab 1 e to f i ne.
w i th
of either description for a term which shall
extend
ten
to
(
(
Provi ded
spec i al
(.
C
that
the
cou rt
may,
for adequate and
rt-asoris t o b e me n 11 o n e d in the judgment,
sentence
of
imprisonment
for
a
i mpose
a
term of les*s than five
years.
(.
(.
Expi anat on :
"Sexua1
sections
3 76C
arid
mentioned
in
:--7 6G
c1auses
in
i n ter cou r se ’*
hal 1
(a)
to
this section and
mean
any
of
the
acts
(e)
of
secti on
375.
(
Explanation to section 375 shall also be applicable."
(
(
<
(
31
e
<
c
(
€
•’376C.
Sexual
<
remand
home,
(
i ntercourse
etc. -
by
or
women’s
or
advantage
hi s/her
official
£
posi tion
!
takes
and induces or
(
or
(
p 1 ace
home,
remand
to have sexual intercourse with him/her, such
sexua i
sexual intercourse not amounting to the offence of
assault,
<
custody
of
i nsti tution
chi Idren ’s
seduces any inmate of such Jail,
institution
Jail ,
law for the time being in
any
under
force or of a
of
(J
Whoever, being the superintendent or
manager of a jail, remand home or other place
establi shed
of
superintendent
by
56
shal 1
be
I
wi th i mpr i sonment of ei ther
pun ished
description for .a term which shall not be less
than
i
f i ve
(
years
and which may extend to ten years and shall also be
(
liable to fine.
<
Provided that the
special
court
adequate
for
may,
reasons to be mentioned in the judgment,
sentence of imprisonment for a
of
term
less
ano
impose a
than
five
years.
<
<
exp 1 anati on
1 .-
”S u peri nte nde n t"
remand home or othe
place of
in relation to a jail,
custody
or
a
women’s
O*'
ch i1dren’s i nsti tution i nc1udes a person holding any other
office
in such Jail, remand home, place or institution by
virtue of which
he/she
can
everc i se
any
author i ty
(
<
control over its inmates.
(
(
67
32
Explanation
2.-
The
”women’s
expression
or children’s
institution’’ shall have the same meaning as in Explanation
(
(
2 to'sub-section (2) of section 376.
<
<
376D.
intercourse by any member of the mar? age me nt
.Sexua 1
or staff of a hospital with any woman
whoever,
hospi ta ■ .
that
in
beirig on the management of a hospital or being
(
staf f
the
a
po s i t i on a ri d
that
hospitai
a s s e >: u a 1
hosp i tai,
such
advantage
person
i n te rc<:• u r s e r>o t amoun t i n g
assail 11,
be
shal 1
puni shed
of eithe?* description for a term which shal'*
not be less thAn five years arid which may
1 i ab 1
years and shall
Provioed
that
to
of
■•mpr i s on me nt
for
ten
f i Fie .
cou rt
the
extend
may,
for adequate aCiC'
special reasons to be mentioned in the j u d gme nt,
sentence
hi s/her
of
any
w i th
i ntercourse
sexual
the offence of sexual
i rnpr i son me nt
takes
a
i mpo se
a
term of less than five
years.
(
Expj anation.-
•he expressior?
same
as
me an ing
in
shal i
’’hospi tai ”
have
the
E x p 1 ar« a t i on 3 to s u b- sect i on ( 2 ) o f
section 376."
t
(
(
3.5.
Th i s
(
We
(
Insertion o f s e t i o r« 3 7 6 E :
h a ve
contact’.
variety
i
a
hO 1 > y ne^ section
• 'ed
oftence
This
of
sec t i on
of fences
iS
intended
f- e c owe n d e d
by
se > ua •
A.W f 1.1 1
to
cover
a
including sexual harassment at worn
52
oo
c
C
€
C
place and sexual perversions of the kind mentioned in
note submitted
by
Sakshi.
Sub-section (1) of this new
section covers touching, directly or
oart
£
of
indirectiy,
sexual
person.
such
we
have
Sub-section (2)
i s an
^9^,
of fence
a
person),
intent and without the consent of such other
In castr the other person is be low-
merit ioned
c
with
the body or with an object, any part of the body
of another person (not being the spouse of
wi th
the
si xteen
h igher
*_e commended
extension
'r
years
punishment.
el adoration
the
sub-section ( 1 ), w l*i i 1 e s u b- s e c t i o n
i
(3) deals with a case where such offence is committed on a
youo g
person
Expl anati on
y e o. r s .
you rig
to
i f the
committed
mean
a
is
Pe r s n
below the age of sixteen
of
unlawful
your.g
young person is
pun ishment
be i ng
a
offe nc e
on
person
a
def ined
sexua1
the
by
contact
ri gorous
of
dependency,
s
is
by a person with whom such
re 1 ati onsh ip
(
the
i
l
i mpr i sonment wh i ch may extend to
seven years or with fine or with
both
in
and
case
the
offender happens to be the father, grandfather or brother,
a still higher punishment is provided for.
a
ryoung
person’,
(Sections 161,
also contain
3.5.1.
consent
as
treated
152 and 153 of the Canadian
i rrelevant.
Criminal
Code
recoQ-mend
section
that
376b be insertec in rhe I pc
(
(
<
si mi1 a r p rov isions}.
If'r i l"'i qt new
therefore
is
In the case of
376E
recommended.-
a r.ew section,
We
name 1y, section
(
(
(
tr.e following te,*ms’
(
(
i
V
€
€
34
Uni awful
”376E.
sexual
contact (1) Whoever, with sexual
i ntent, touches, directly or indirectly, with
part
a
€
the
w i th
body
an
another person, not
Without
the
part of the body
any
object,
spouse
of
of
such
othe r
person,
sha 11
be
tern-.
uhi ch
ma v
consent
extend to t
years o*'
whoever,
a
ith fine or with both.
with sexual
intent,
invites, couuse • s
inci tes a young person to touch. di rectiy
(
indi rect1y,
ith a part of the body or with an object,
pe '’son,
Tl
cc’urise • s
1nc i te^
any
the body C"
the person who
r>(*>1’1 v
tone j■>e s,
directly or '• ndi recti
object
person,
the
punished w i t bi s i r6 pie i n ? p r i s o r? m ent f o r
•i
such
bei ng
wi th
• nv; res
sexual
ith a part of the body or with an
of the body of a young person, shal 1
part
be
punished with imprisonment of either description which may
xtsnd to three years and shall a1 so be liable to f i ne.
author i ty
• 3)
Whoever being in a position of trust or
towards
a young person or is a person with whorn the young
person
is
•r
i r.
a
re 1 at ionsh ip
of
d irec11y or ino irec 11y, v'ith sexual
the
t_ -
-J .
v
or with an object,
yoiing person,
e ither
seal i
shal i
description
touches,
intent, with a part of
any part of the body of such
be
punished
wh. <- r,
may
• '-able to fine.
dependency,
wi th
i mpr i sonment
extend to seven years and
6o
35
€
Explanation:
€
€
sub-section
”Young
person"
means
(2)
in
this
sub-section
and
i
i
a person below the age of sixteen
years.”
€
e»
3.6.
Deletion of section S77:
In the light of
the
375 ,
of
we
are
deserves to be deleted.
r
(
in
the
preceding
the
by
effected
change
opini on
us
in
that section 377
i
!
After the changes effected by
provisions (sections 375 to 376E), t h e
r
voluntary
I
We ff?ay leave such
(
on 1 y con te n t 1 e f t
in
carnal i n te r co u r se
wi th
section
any
37 7
hav i ng
is
animal.
persons to their jusr. deserts.
(
I
3.7.
(
A me n d me r>. t o f s e c t i o n 5 G 9 :
So far as this
section
is
concerned,
the
change we are suggesting is enhancement of punishment.
recommend
that
the
existing
on I y
(
w!e
(
5GS be amended as
section
fol lows:
i
"50S.
Word ,
gesture
act
intended
insult
to
the
i
modesty of a ^oman:
(
/
Whoever,
1ntend i ng
to
woman, utters any word, makes any
exhibits
any
object
shal i be heard,
seen,
• r:
‘C
p
fi
intend ing
insult the" modesty of any
(
gesture,
sound
that
or that such gest'jre
•j on
L
such word or sour'd
{
<• b i e C t
t *''U p r'
sna 11
be
<
(
('
(
(
c
a!
36
e
, e
C
(
extend
may
which
te rm
for
imprisonment
woman, shall be punished with simple
a
to three years and shall also be
liable to fine?
(
(
New.Section 166A,
3.8.
I PC:
(
The
8^th
Report
recommandad
(para
3.20)
of
the
that
a
had
Commission
Law
(
new
name 1y,
section,
(
sect 1 on
• 66A ,
? he
inserted in the Indian Penal Code.
ba
( -
object behind this new section
to
was
a
puni sh
plibl *> C
(
servant
knowi ng]y
who
d i sobeys
any
1a
of
direct i on
i.
prohibiting him from requiring the attendance at any place
(
of any parson for the purpose
(
offence
(
other
of
invastigation
such
conduct
(
.
wi th
C
section
(
investigation
PreJ ud ice to any parson.
(
whom
we
h
O
ar?
matter or knowingly disobeys any other
direction of law regulating the manner in which
(
into
The
and
which act of his causes
Saks hi
raprasentati
d i sc uss ion,
a
shal '•
he
requested
that a new
the
Law
Commission be recommended to be inserted in the IPG.
This
as
recommended
by
84 th
Report
/
(
.
provision must be understood in the light of the fact that
(
the next cf?apter, we are rec omme n d i n g s a v e r a 1 me a s 'j r e s
(
w i t h r e s p e c t t o t n a m a n a a r in which the statement of wome^
(
ar< d ch i 1 d r e n (be 1 o*-
16
years)
shou1d
be
piece wher
it should be recorded and so on.
3.8.1.
sect ion
recorded,
the
(
(
Nw^
- c c o »■ d i n g ' y ,
(
in the I PC
(
(
\
(
J
166-
the
a •■ecomment tf»at
in the following terms:
I PC
f~ecommended. •■? t '‘C’duc eo
(
o7
■
•
;v-'-
42
(
•
-166A.
Whoever, being a public servant-
(
c
(
(
c
knowing 1y
the
<
1 aw
prohibi ting
attendance
<-
at
any
di sobeys
eny direction of
(
h i fn
requiring
the
(
any person for the
(
f rorfi
of
place
purpose of investigation into an offence or
other
(
(
matter, o
(
(b) knowingly disobeys any other direction
of the 1 a
A:
conduct
egulating the manner in which he shall
Such
investigation,
any person, sha 11 be
for
a ■
(
to the prejudice of
punished
(
(
■wi th
imprisonment
(
term
which may extend to one year or w '• th
(
fine or wir.h both. ”
(
3.S.
views
(
of
"Sakshi ”
for
' consent1
defini ng
(
considered.- Lastly, we may refe
insert
the definition of "consent" for the purpose of
the aforesaid sections.
that
no
internreted
the
said
however
of
to*
express ion
has
the
(
page
bas i s
r" ree
(
and Pronounced «jpor* by the c-ourt.§ in India ir;
7GG
C’T
the
Nagpur High Courts,
a
op i n i on
(
of
the
dec isi ons
•- n a t
a 1 ready
Reference in this behalf
may
be
(
Commentarv or. IPG by Justice
<
•Jaspai singh (Fi,-St. Edition 1998)
where it is
v.
the
beer.
good number of cases.
made
We are
(
such definition is called for at this stage. for
the reason that
•-■x-
Sakshi
of
(
to
i
to a request
stated,
on
the Madras, Punjab and
c q»*! s e r't ‘•mpl'ies the exercise
(
o'id ‘J'-'-ramme t led right to forbid or withhold what
f
36
is being consented
/
to;
it
always
is
(
conscious
c
another and concurred in by the fornter".
<
acceptance
of
what
a
voluntary
and
is proposed to be done by
I
39
ce:
chapter four
i.
€
(
C
Changes recorrtmended in the
Procedure ,
Criminal
of
Code
(
(
1973
<
j. . i .
PfOpOSdis
C r 1 m i n a 1 p *~oced u re. -
re p r e sen tatives
e1 ating
"•ScKsh i "
of
As
stated
the Code of
to
chapter
in
two,
the
•Saksh i have come forward with as many
1
nd the evidence *ct.
du
('
(
14 recommernjotioos proposing amendments to the Code
C r *i m i ?■
I
We had me<*‘t ■’ oned
(
We sha’I »■( r> uy p r ij<_ eed to dis c *.< s s
them in the said chapter.
(
them.
(
<
84xh Report
of ihe Law
Conrni ssion
2.
to
Ada ”• t
<' 5
sect ■ or.
<
160,
th
i f'«e
PepOr‘ t
t~ e c o m m e n d e d (paragraphs
oad
to 3. « 5 } that sud-sections ; .3)
to (7) be added in section 16G.
the
o f t h e Law C omm i s s 1 <j
(
pa rap hr as i r>g
Instead
(
reasons giver, ir. the a^th Report in our own words.
viQij'id be appropriate to set out paragraphs 3.11 to 3.15 o<
that Report hereir«be 1 ow:
(
(
(
(
" I v,
f e m ale v i c t i m s o f s e > u a '•
Interrogation
of f e nre s
(
(
(
3.11
These
Reporting and Investigation
conre r n
a r rest
we
and
de a 1
of
detenti on
W i t fi
<
vw on. er.
I
■ certain
i C t i r‘ ’' S
W<jfi<er.
matters
sa * a •
'"‘•o fiave Peen .‘aped are <’e < ‘jc tant
(
e m o a r r a s s clie n t
i
to report it, partly because of the
c
bs
%
(
. €
e
(
of discussing the details with male policemen. and
parfJy
because
of
the
very
fear
(
(
of even more
painful humiliation of being a .witness in Court.
(
(
(
■ bey get scared and be c ome c o n f use d
(
(
when,
i n t.he s t range en v <• r.p.r. r»r the Court room,
(
<
have
<
the 1 < custom and *j’’de<‘ a restraint.
(
thev
to co»?duc t t hemselves i n a n-i a n n e r fore i g n v r.
not
cendueive
<
e. »■ a»■? d c o »*• e ’■ e * c r. h o u g h t c- »' free express "i on .
r
(
<
3.12 Ivesti gation b> female police - No statute*'-v
‘"hange , ecc,«'?f’‘ended f com
.o '"ess i ng
y'Oman
•: ’large
(
or fence by r ne fac t that
d iscourageo
of rape or other
she
(
•j s u ai I y
encounie''s
on 1 y a,a 1 e
Po • c e a»’• d n r- <j $ r. ij
r,,j f f i c e r s.
presumab1
for
that
(
(
(
-s often
suggested
th i S
reason
it
has
bee^
that the investigation of such offences
done by wofrien police officers only.
(
(
We
(
wou 1 d
be
li a p p y i f
(
female v i, - r. is
(
omen pc» i i ce of f i c e r s on 1 y,
. (
(
f sexual offences would be done by
recomme'--.d
(
this regard.
a
We are not,
A mandatory provis-ion to that effect
ma y p ro v e to be unw<_-x e.b i e .
The A'jfnher
po i
areas
ce
(
however,
statutory nrovision 1n
rural
a
(
he q ue s t i on i n g of
of
women
is very small.
c e<'« t r a 1 i sed
-1
€
(with'
the
status of a police station) is created
for i nvest i gati on
i nto
sexual
offences
against
wornen, such a provision may not be practicable.
(
regard
one.
this difficulty as a transient
An al 1 -o'Jt effort
suffic ient
number
coo 1 d
drafted
be
vmI-.O
duties
pel ice
estigation, should be made -
e
be
r- ' »eri,
• n me t r opo 1 i t a n c i t i e s o r
"i 11
ci ties
recrui tment
women pc11ce officer s,
*• »"• te r c»’-j a •_ o
Pr-act
the
in
adopted
metropeli tan
wf-.e»*e t‘«ere are sufficient number of wome'"shouId be estaP1isned
chat
worsen
po1ice
officers
a ■ one
sexua 1 •:« • fences and i r<ternegate the v i ct im.
ne
a., e,
n o t i n f a v o u r o f a ri y
statutory provision beirig made
subject
■~hat
in
th i s
respect,
we are recommending in the next
paragraph,
- n t e '* roga t or?
ch i 1 d
of
victim
'■ape
Statutory pr-Qy i s ion recommended. - The practice
suggested
above
areas ano oig cities.
i c r« i s
certa■n
t-e adopted
i n me t r opo i t c ar*
But
is
;‘-nc”’Tance
iS
there
t '*• e w **i c* • e
in the case
ace
say ,
as
be i c«w
one
matte’-
CO*."'' t'' v
air': s
twelve years
oe ’ o
ho are
6?
42
(
statutory
a
be
should
<
victims of
rape,
(
provi si on
to
ensure
that
(
interrogated only by a
woman.
(
officer would
be
<
police officer
is
C
procedure as detailed below should be followed.
there
A
police
if a woman
alternate
an
available,
not
woman
But,
preferable.
be
must
girl
the
<
con temp late is this.
{
that
p r oc e d u r
a 1 ternate
The
Where a woman police officer
is not available, the officer
charge
in
of
the
<
station should forward a list of questions
police
(
suggest
shal 1
to a qualified female (we
detai 1s
who would, after recording the inforrnation
1 ater)
t
return
as asce r ta i ned f rom tfie ch ’’Id v i ct i m,
the
t
to
papers
put
charge of the police
in
officer
questions
further
If hecessary,
station.
<
(
the
to
be
to the child <Tiay be sent by the police to the
interregator.
I
(
applied to
(
f ema1e
may
v icti ms
be 1 ow
years.
for
chi 1 d
\h~\ tnesses
cot!Id later be uti i ised
gerjeral ,
procedure
th i s
For the present,
be
i f found practi cab1e.
(
The
;
mi nd
f
“qualif ied
whom
female"
we have i n
■
ShOU1d
be
one
who
is
a
soc1 a 1
w C’ r K
belonging to a recognised social o^ganisat ion.
»■
4
t
I
I’
(s
z
'4
V
f
<13
i
she possesses some knowledge of lew and procedure,
it would be all the more useful. but that need not
be a statutory requirement.
3.15
.Amendment
recommended
by
(
insertion of sub-sections (3) to (7).- In view
of
(
recommend the
(
new
(
what
is
. sectior«
<_> i
stated
above,
16G
we
WOU 1 d
addition ci the fol 1 owirig provision -
sub-secticos
Criminal Procedure,
1 60
sect ion
i fi
of
<
the Code of
1373:
I
" • 3} Where,
the
statement
under
this
(
chapter,
of a girl under the age of
<
twelve years I s to be recorded, either
<
information of an offence or iri the
course
of
an
i nvesti gation
i nto
an
(
of f ence,
and the girl is a person against
(
whom an offence under section 354, 354a or
<
375 of the Indian Penal Code is alleged to
have
been
statement
female
commi tted
sha 1 1
po1ico
be
or
attempted,
(
the
(
recorded either by a
o f f ice r
cr
by
a
person
(
authorised by such organisation interested
the welfare of women or children as i s
r e c c» gr? i s e d* i r« th i s
beha 1f
by
the
(
(
State
(
GC'vernn?cnt by notification 1n the official
(
<
I
(.
i
I
69
44
<
(4) Where the case ie one to which
(
<
the
provis ions
<
and
a
police
not
is
officer
po1i ce
f emale
the
officer
in charge of the
station
shal1.
in
avai1 able,
(
of sub-section (3) apply.
to
order
facilitate the recording of the statement,
to the person referred to in that
forward
sub—secth(jri a w»'itteri redue^t totting
cut
i nformation
is
the
which
on
pc ints
1ici ted from the girl.
■required to be
such
win cm
to
r«e r son
( 5 J The
a
forwardeo sha11, af te
ritten
request
record ing
the
statement
of
the
t r ar»s!hi t
the
record
to
the
officer
■» n
charge of the police station.
statement
(6) where the
(
(
<
(
by
forwarded
as
person
such
recorded
under
sub-section (5) appears in any respect
requi re
ampli fication,
cl ari fi cation
shal 1
of
charge
off icer
return
to
the
the
pel ice
papers to the
(
stat ion
(.
person by whorn it was
(
request for c1 ari f i cat i on or ampli f ication
specified
rratters;
thereupon
(
forwarded,
and
Sr C C* r d
w i th
a
such
person
the
f urt^er
7u
( .
<
< ,
the girl in conformity with
statement * of
to
the request and return the papers
the
officer in charge of the police station.
(
(7)
statement
The
the
of
recorded and forwarded under
sub-sect ions
(6) shal1, for the purpose of the
(3)
to
1 aw
relati ng
to
the
in
admiss iPi 1i ty
evidence of statements made by any person,
be
deemed to be a statement recorded by a
police officer.”
•1.2.!
sai a
the
The representatives of Sakshi supported
recommend at i on arid wanted us to reiterate the same.
154th
Report of
ihe Law
Cmmi ssion
of India
<
■
4.2.2.
The
15-ith Report of the Law Commission dealt
th
the above recommendation in paragraphs 6.5 to 6.S.
setti ng
out
154th
Report
a- 4 •
aforesaid sub-sections in para 6.5, the
*
makes
the
comments
following
and
recommendation in paragraphs 6.6 to 6.S of chapter XVIII:
“6.6 The origin of this suggestion in
form
embryonic
*A
can
be
the
to
traced
Commi ss1 on *s Reports on “Rape and Allied Offences”
and “Women in Custody".
6.T The Bill (NCW) has gone beyond the Lr>
Comm i s s 1 or-’s
ear 1 i er
r ecomme n d a t i ons
insi sti ng
the
of
on
presence
a
in
t r.at,
female police
i
(
■ c
€
officer.
(
(
7/
46
<
officer
(
should not lead to delay in the
useful
i s-
and
necessary,
Sub-sections
the offences.
of
presence
the
Though
their absence
investigation
of
, (6 ) , (6) and (7)
(
incharge
off i cer
referred to above obligates the
(
female
such
.
of
police station to forward the person to a
the
representative of a government,
recognised women’s
organisation and the statement
recorded
(
(
person
such
by
shall be deemed to be a statement recorded
by the police officer.
(
6.6 it may be pointed cut
(
(
that
IS 94
the
Bill does not incorporate the above amendment.
(
are c-f the opinion that section 160
6.9
(
be amended on the lines suggested above subject to
(
certain modifications.
sub-section
The recommendation made in
NOW
( 4'.
Bi 11 is not practicable
(
having regard to the present condition and
C
of female
police
(
practicable
for
It may also not be
officers.
the
dearth
person
any
victim
interested in her to approach the person menfioned
(
in sub-section
I
sub-section (4) may be amended to the effect
(3).
Instead,
we
suggest that
that
where a female police officer is not available and
to contact the person mentioned in s‘Jb-section ( 3 •
l
is
in charge of the police
station, for reasons to be
recorded
in
writing,
7^
47
<<
shal 1
proceed with the recording of the statement
(
* (
of the victim in the presence of a relative of the
<
I
1
victim.
i
Further, the age of "twelve years"
raised
be
to
"eighteen years" in conformity with the Convention
(
I
(
i
(
on the Rights of the Child.”
4.2.3.
Re i ter at i o>'<
154-th Report.-
of
the
re c ommend a t io ns
Gn a cons i derat ion
of
al 1
made in the
the
re 1evant
i
facts and the realities of life, we too are of the opinion
(
that
the procedure indicated in the sub-sect ions (4),
and (6)
is
too
Imp1ementat i on
involved
bes ides
impracticable.
of the several steps mentioned in the said
(
(
sub-sections (4) to (6 ) w r> < d indeed result in unnecessary
(
harassment
the
(
We are inclined to agree
(
with the opinion expressed in para 6.S of the 154th Report
(
to
the
victim
of
complainant, as the case may be.
of the
Ct
be i ng
( 5)
Law
Commission
in
the
this behalf.
changed the language of sub-section
woman government
officer.
offence
(3)
or
to
We have however
by
including
a
(
Changes are also called for in
the liyht of the amendments effected by Act 43 of 1983 and
a 1 so i n the 1 i ght of the recommendat i ons
made
by
us
in
■■■<
paras
3.2 and 3.5 (substitution of the offence in section
375 and the addition of section 376E).
k
• r (
<
<<
'
75
43
<
Insertion of sub-sections
4.2.3.1.
(3)
&
in
(4)
t
section
, (
the
of
16G
of Criminal Procedure,
Code
recommend
Accordi ngly,
o
1^/0 . —
two
f ollowing
the
that
4
<
sub-sections
iuserted
be
section «6v of the Code o*
in
4
z
(
C r i m i n a 1 P-roce d u r e :
(
r
i
<
f ema’e
to
is
either
recorded
be
<
as
i
informat ion of an offence or in the course
c
i rivest i gat i on
376,
376A,
I ndian
an
into an offence and she is a person
against whom an offence under sections
i
a
"(3) where under this chapter, the statement of
376B,
Pena i
committed
Code
376C,
375 ,
3760, 376E or 5G9 of the
to
alleged
is
354 ,
been
statement shall be
the
attempted,
have
a
recorded by a female police officer and in case
t
r
/
fema 1e
po1ice
female
government
v i c i n i ty
and
of ficer
is
not
available
servant
t
in
. • €1—
L'V
the
in case a fernale government servant
is al so not avai1ab1e, by. a female
/
avai1 able,
authorised
by
an organisation interested in the welfare of women
i
or children.
f
(
w'l-.ere
in
any
case none of the alternatives
i
menti oned ♦n sub-secti on (3) can be. fol lowed
for
(
tho reason that no female police officer or female
government
servanr
a fe male aut ho rise d by a
f
r ga.n n sat *• or* i nte* -st ed
the
we 1f are
of
C‘'"i'«e «'■
f
and
i
chiidren
is available.
the officer in charge
o f 11'<e po 1 i ce s t a t i on shall, after
recording
the
7^
49
Z
!
in writing, proceed with the recording of
<
reasons
(
the
C
presence of a relative of the victim.’*
statement
of
female
such
victim
in
the
of the proviso to sub-sectjon (1 .■ of
(
with
(
the power of a police officer to require the attendance of
<
appear to be acquai r«ted with the facts and
<
Substitut ion
4.3.
section 160.- Sub-section (1) of section
who
witnesses
160
deals
(
circumstances of the case being investigated by him.
a 1 so
obligation upon the person so required to
The proviso as it no~ stands, however, says
attend.
no
an
casts
ma 1 e
person under t-he age of
that
15 years or woman shali
<
be required to attend at any place other than the place
(
We
w li i c h s u c h m ale per s o n •j r w o m a n res i des”.
rec <?mH' e nd
(
rai si ng
the
age
from
15
vears
the said
merit ioned
proviso to 16 years.
(
4.3.1.
Cons iderotion of the view
presence
of
of
"Saksfri"
regarding
(
a f r i e r> d *j r a S OC i a 1 w< j r k e r
a • relati ve
dur i ng the i nves t i gat i on. - At tli i s stage, we may deal with
another suggest ion put forward by sakshi to
even where the st ate me nr. of
C»r
provi de
(
(
that
male parson u*ider the age of
of a female is recorded by a police officer
(
a relative or a friend
(
or a social worker of the choice of s uc h ma 1e per son be 1ow
(
be
(
16
years
during the course of investigation,
16 years or the >-oman.
a 11 owed
the
case
may
be,
be present throughout the period d’jring
the statement i s rgcor'ded .
are inclined to
i th
<
75
60
C
<
c<
(
this suggestion, particular!y in the light of the decision
(
(
(
(
Court
of the Supreme
Dan i
P.L.
Nandini Satpathy v.
in
(AIR 1978 SC 1025).
<
(
(
4.3.2.
<
Substt tution
of the proviso to sub-section (1) of
recommend
section 160 recommendedAccordingly, we
prov i so
the
that
160
be
"Provided that no male person under the age of
16
to
sub-sect i on
of
(1)
section
substituted to read as below:
years
or woman shall be required to attend at any
(
place other than the
place
which
in
male
such
(
person or
woman
Wh i 1 e
recording the
f r i end
or
resi des.
(
statement, a relative or
»
a
a
soc i a 1
worker of the choice of the person whose statement
(
is
(
(
be i ng
present.
(
recorded
sha 11
The relative,
be
al 1 owed
to remain
friend or social worker so
allowed to be present shall not interfere with the
recording of statement in any manner whatsoever."
(
(
(
Report
of the Law
Jonmission of
I ndia
4.4.
the Code of Criminal procedure. -' The 84th
Law
(
Insertion of a new section, namely section 164A in
Commission
had
recommended
Report
insertion
.of
of
the
such
a
(
(
provision in paragraphs 4.8 to 4.11 of
(
r easons
(
are the following:
for
“III.
(
(
4.
The
such a provision and the provision suggested
(
i
chapter
Examination of the victim
7^
5»
(
i
4.8 Section 164A, CrPC (To
X
deal with
added)--
f ema 1e
v icti m
cursory and does
(
of
also found to be somewhat
is
give
not
next
exami nat i on
of the medical examiner as to the
the
We
In many cases, the report
victim.
the
be
i nformati on
adequate
i
about the material particulars which are necessary
for
an adjudication as to the various ingredients
<
of section 375.
that
the
Further,
it is sometimes
noti ced
examination report is not sent
med i ca1
promptly to
the
resu1t,
possi bi 1i ty
invest i gati ng
As
off icer.
a
X.
the
o.
tampering
the
report
with the
report remains.
our
In
op in ion,
the
of
examination of the victim in a case of rape should
(besides
containing the usual formal particulars)
deal specifically with -
(i )
the age of the victim,
(ii)
the question
whether
was previously used to sexual
(ii i 1
i n ju»_ ies
to
the
victim
i ntercourse,
body
of
the
condition
of
the
particulars
in
the
victim,
( i v)
general mental
victim, and
(v-
other
materia 1
reasonable detai 1.
4
77
(
f
k
52
(
(
<
(
(
(
(
(
It
is
the
report
time of examination and be sent
the
note
should
that
necessary
also
without delay to the investigating officer.
It is
should
state
very
report
the
that
important
(
<
reasons for the conclusions recorded.
<
4.9
Need for legislative provisions.- Ordinarily,
SUCh
matters
left
are
executive instructions.
the
deal t
be
to
However,
importance of the subject,
wi th
by
having regard to
it would be proper
to insert in the Code of Criminal Procedure, at an
(
appropriate place, a provision
i ncorporating
(
guidelines that
have suggested above.
we
the
In the
(
the
light of the practical working of
provision,
(
further improvements could be made in the relevant
(
provisions.
(
(
4.10
Accordingly,
/
recommended.-
CrPC,
164A,
Section
following
we recommend that the
new
section should be inserted in the Code of Criminal
(
Procedure,
1 973:
<
”164A.
(1)
Where,
the
during
an offence of rape or attempt
(
stage
C
to commit rape is under investigation,
when
it
is proposed to get the person of the woman
w i th
f
whom
committed
medica1
t
rape
or
is
alleged to have been
attempted,
expert,
exami ned
by
a
such examination shall be
■ 7g
53
<*
by
<
conducted
v
pract itloner,
medical
registered
a
consent
of
the
woman or of some person competent to
give
such
consent
shal 1
be
wi th
the
on her behalf and the woman
registered
the
to
forwarded
medical practitioner without delay.
(
med ica1
reg i stored
The
(2)
(
to
pract it ioner
f orwarded
shal 1
the
woman
is
without delay examine her
report
person and prepare a
record 1 ng
such
whom
speci fical1y
of his examination
result
i
and giving the following details:
address
(i) the name and
woman
and
of
<
of
the
t
the person by whom
she was brought,
(
(ii) the age of the woman,
(i i i)
whether
the
used
previously
was
victim
to
<
sexual
intercourse ,
(iv) marks cf injuries, if any, Of!
the person of the woman,
(v) general
condition
(
of
(
material particulars,
(.
mental
the woman, and
(v i )
other
;n reasonable detail.
77
.(
54
(
(
<
(
<
prec i se1y
I
state
shal 1
report
The
(3)
the reasons for each conclusion
arrived at.
(
(4) The report shall
spec if ical1y
i
record that the consent of the woman or of
V
some person competent to give such consent
on her behalf to such examination had Peen
obta i ned.
(5) The exact time of commencement
and
completion
of
the examination shall
noted
in
the
also be
to
without delay, forward the report
invest!gating
the
Magistrate
referred
section
173
as
of
part
<
referred to in clause (a)
<
(5) of that section.
(6)
be
(
construed
exami nation
the
of
to
in
documents
sub-section
Nothing in this section shall
as
rendering
wi thout
the
*1 awful
consent
victim or of any person competent to
such consent on her behaIf.”
4
the
who shall forward
officer,
to
it
the
shal 1
practi tioner
modi cal
regi stored
and
report,
any
of the
give
55
<
<
(
In
of
examination of the victim
4.11 Medical
rape.-
regard to the examination of the person of the
section 53(2) of
accused,
the
Code
of
Crimi nal
<
provi des
Procedure
that whenever the person of a
female is to be examined under that
section,
the
(
be
shal 1
examination
of,
supervi sion
made only by, or under the
<
a
f emale
register ed
medical
practiti oner.
The question whether a provision should be
inserted to the effect that where a female
victim
of a sexual offence is to be examined, the medical
exami nati on sha 11 be conducted only by a female
med ical practitioner has been carefully considered
riot
by us. We think that a statutory provision is
necessary, for two reasons. In the f i rst place,
this
almost
is
the invariable practice in India
and a statutory mandate is not
needed.
In
the
place, if a fema 1e victim does not wish to
there i s
submit to examination by a male doctor,
For
no legal obii gation on her part to do so.
that reason also, a statutory prov i si on i s not
second
necessary.
It may be mentioned that such inedical
examination cannot be lawfully
consent
of
made
without-
the
the woman or of some person competent
to give consent.”
4
(
&
( (
('
56
(
(
4.5.
(
Report
the
Report
of
propose 1
in
154th
The
154th
the
in
proposal
Reiteration of the above
Commission has
Law
(
reiterated the said
(
of
ihe Commission expressed the opinion that
chapter XVIII.
(
!
7.3
to
7. 1
paras
(
such a provision is eminently
the
to
subject
desi rable
i
medical examination be made preferably
mod i f i cati on
that
by a
medical
female
emphas i ses
also
Report
The
practi tioner.
importance and signifance of a speedy and
the
(
detailed medical examination of rape
speedy
and
victims
despatch of such report to the investigat1 ng officer.
i
changes.-
(
(
(
the
We
aff i rm
and
contai ned
recommendations
5
(
of
Acceptance
4.5.1.
(
proposal
consequenti a 1
wi th
rei terate
aforesaid
the
in the 84th and 154th Reports.
However,
in the light of the changes
section
375,
proposed
us
by
in
necessary changes by way of adaptation have
(
to be made.
(
4.5.2.
(
Procedure recommended.- Accordingly, we recommend that the
Inserti on
of section 164A in the Code of Criminal
following section 164A be inserted in the Code of Criminal
(
Procedure:
(
i
“164A.
(
(
any
f
sect ion
376B,
section
3 / 6c
off ence
Z* z—
stage
when
section
376A,
(1) Where, during the
under
section
sect i on
is
under
376C,
376 ,
proposed to get the victim examined by
(
expert,
(
or
and it is
i nvesti gation
(
such
3760
sect ion
a
medi cal
examination shall be conducted by a
57
<
<
registered medical practitioner. with the
<
of
(
such consent on his/her behalf.
r
consent
the victim or of some person competent to give
In al 1 cases, the
victim should be sent for such examination without
i
any delay.
(
a
Provided that if the victim happens to
be
sha 11
be
far
as
med ical
the
f ema 1e,
exami nation
conducted by a female medical officer, as
poss iole.
(
(
(2) The registered medical practitioner to
whom
victim is forwarded shall without delay
the
exami ne
prepare
and
person
the
report
a
(
recordi ng
specif ical1y
the
resu1t
of
his
(
examination and giving the following details:
f
(i) the name and address of the victim and
the person by whom he/she was brought,
(
(11) the age of the victim,
(iii) marks of injuries, if
(
any,
on
the
person of the v i ct i rn,
(iv)
general
t
v
menta1
condi tion
of
the
victim and
(v )
<
(
<
other
mater i al
particuiars,
in
(
1
reasonable detail.
(
(3)
The
report shall state precisely the
reasons for each conclusion arrived at.
(
!?b
6'3
(
ft
<
(
(4) The report shal1
(
record
specif ical1y
consent of the victim or of some person
the
(
that
i
competent to give such consent on
beha 1f
his/her
tO SUGh examination had been obtained-
(
(
<
exact
The
(5)
of connre a cement and
t i me
noted
comp 1 et ion <:>f the examination shall also be
i ri
report,
the
practitioner
sl’i a 11
arid
ithout
report
the
i nvestigating
forward
to
the
I 73
sect i oi!
medi ca *
reg ister ed
the
delay,
f orward
the
of f i cer, who shall
referred
Mag i strate
to
in
as par t of the documents referred to
in clause •a) of sub-section (5) of that section.
i
Noth i ng
(6)
construed
as
in
render ing
shal 1
be
th i s
section
lawful
any
exami nation
or
any
without the consent of the victim
person
competent to give such consent on his/her behalf.
k
(
•
v
i
k
The recorrmendaiions of the
th Report
of ihe Law
Con-mission
on the Code
f of Criminal
Procedure
4.6.
Insertion of a new section
53A
<
(
t
the
Code
Criminal Procedure.- The 64th Report of the Law Commission
had
recommended the insertion of new section 53A in pai a^
4.5 to 4.7 of Chapter 4, which reads as follows:
t
e
in
"Il.
Examination of the accused
59
<
<
(
(
(
I
4.5 Provision
in
exami oation.-
The Code of Criminal Procedure has,
the
Code
for
Need
timely
l
in section 53, a general provision on the
subject
of medical examination of the accused in all cases
where
such
examination
would afford evidence of
commission of offence.
!
It is, however, seen that
the
med i ca1
examinati on
the
report
is often cursory,
not sent in time, in cases of rape or
of
or i s
attempt
to
commit rape.
In
v.
a
State,
recent Calcutta case (Narayan Dutta
1960 CrLJ 264,
paras
the
1-2),
High
Court was constrained to observe-
"It
is
also striking that the appellant,
though arrested on that
very
night
(9 th
May) was
before
Dr.
Pal
(P.W.
not
produced
11) who examined P.Ws.
i
1 and 10 on
10.5.1970.“
<
4.6 Particulars to be entered and
to
be
g iven.-
reasons
It is also desirable that
the report should (besides containing
the
usual
deal
forma 1
i
parti ceil are)
speci fica11y w’th
the
age
of
ths
accused,
(ii) injuries to the body of the
accused,
and
(iii)
other
i
material
!
i
a
(
i
(
(
c<
I (
(
<
<
oO
60
t (
time
precise
also
note
the
exami nati on.
It
should
should
detai 1.
reasonable
particulars in
It
of
be sent without
«4
delay
medleal
registered
the
by
to the investigating officer
t
practitioner
<
and the latter should file it
(
Hag i senate
with
sent
documents
along with, the
the
take cognisance
to
empowered
before
the
chai Ian under section 173(5) of the Code.
Recommendation
.7
(
CrPC.- It is very important
(
i n the report.
(
i
reasons
that
Accordingly, we
Procedure,
Criminal
(
53 ,
recommend
the insertion in section 53 of the Code of
(
A
section
be given for the opinion expressed
should
(
(
to
as
the
of
fol lowing
sub-sections :
v
’’Section 53( 1 A),
(IB) ,
(1C)
and
(
(10),
Code of Criminal Procedure,
1973 to
(
(
be inserted.
(
(1A) When a person accused of rape
t
or an attempt to commit rape
(
arrested
is
and
an examination of his person is to be
made
unde r
f o »* warded
th i s
section,
he
sha 1 1
without delay to the registered
(
med i ca1 practitioner by whom he is
<
examined.
(
/
be
to
be
bi
shal 1
wi thout
del ay
and
prepare
a
examine such person
speci fi cal 1y
report
of his examination
resuit
the
examination
such
practitioner conducting
record i ng
medical
registered
The
(IB)
and giving the following particulars:
of
address
and
(i) the name
accused and of the person
the
by whom he was brought,
age
the
of
(ii)
the
(iii)
marks of injury,
accused,
if
any, on the person of the accused,
and
materi a 1
other
(i v)
particulars in reasonable detail.
(1C)
The
state
shal 1
report
precisely the reasons for each
conclusion
arrived at.
(ID)
The
exact
time
of
commencement
and
comp 1eti on
of
the
exami nat ion
sha 11
report,
and
the
a 1 so
be
noted in the
reg i stored
med i ca1
P r act i t i one r shall, without delay, f orward
the
report
to the investigating officer,
V
c
62
(
(
d <
who shall
forward
(
(
referred
to in section 173 as-part of the
(
documents referred to
to
if
the
Magistrate
(a)
clause
in
of
sub-section (5) of that section.
(
(
cons i dered.-
"Sakshi0
of
Views
4.6.1.
The
representatives of Sakshi supported the said proposal with
t
By
means
of
prov ided
that
the
a few
additions.
sought
to
be
<
practi tioner
shal 1
these additions it was
medical
reg i stored
also state in his report with respect
recent
to "any traces of blood, semen and evidence of any
(
sexual activity
in
reasonable detail”.
We are, however,
(
Sakshi
of the opinion that the said addition suggested by
is
unnecessary
s i nee
the
provision as suggested by the
(
84th Report is comprehensive enough to take
in
the
said
(
( '
(
(
particulars as well.
Accordingly, we affirm and reiterate
the
recommendation
of the 84th Report, subject, however,
to
changes
and
in
adaptations
1 ight
the
of
our
(
recommendation for substitution of section 375 of the IPC.
‘
4.6.2.
(
(
i
(
/ <
19 7 3
New section 53A in the Code of Criminal Procedure^
recommended.-
Thus
the
When
a
proposed section 53A shal1
read as follows:
(
(
(
”53A.
(1)
•offences unde
r
(
{
person accused of any of the
sect •» ons
376 ,
S76A.
3 7 6C,
376G or 376E or of an attempt to commit any of the
sa i d
off ences,
i s arrested and an examination of
/
his/her person is to be made under
(
3766,
th i s
sect ion,
&
(
63
(
<
to
the
registered medical practitioner by whom he/she
is
he/she
be
shal 1
delay
without
sent
to be examined.
(2)
The
medical practitioner
reg istored
conducting such examination
exami ne
such
specif leally
sha 11
de 1 ay
without
person
and
prepare
record ing
the
result
report
a
of
his
examination arid giving the following particulars:
(i)
the
accused arid the
name
and address of the
person
whom
by
he
was
brought,
(i 1 ) the age of the accused,
(i i i)
marks of injury,
if any, on
the person of the accused, and
(iv) other material particulars in
reasonable detai 1.
(3) The report shall state
precisely
the
reasons for each conclusion arrived at.
The exact
comp loti on
in
the
of
commencement
of the e-ami riat ion shall
report,
practi ti oner
t i me
and
shal1,
the
wi thout
also be noted
regi stered
delay,
and
med i ca1
forward the
■
6^
(
r <
report to the
(
forward
it
i nvestigating
the
who
officer,
to
in
referred
to
ref erred
Magistrate
section 173 as part of the documents
shall
in clause (a} of sub-section (5} of that section.”
4.7.
Consequenti a 1
amendments in the First Schedule to
i
the
Code
of.
Crim i n a 1
Procedure t
1S73
recommended.-
Consequent upon the proposed amencments in sections 376 to
3760, 377 and 509 and the insertion of new section 376E in
I PC,
the First Schedule to the Code of Criminal Procedure,
1973
will
need to be amended and the existing entries in
respect of sections 376 to 3760,
z
wi 1 1
have
to
377 and 509
of
the
I PC
be substituted and entry in respect of new
section 376E wi11 have to be inserted as under:
376
<■
t
r
(
Sexual assault
Impr i sonment
for life or
imprisonment
for 10 years
and fine
Di tto
Sexual assault
by a man on
his own wife
being under
16 years of age.
Imprisonment
for 3 years
and f i ne
NonDitto
cognizable
Ditto
Sexual assault
committed by
a person in a
position of
trust or
author i ty
towards the
person assaulted
or by a near
relative of the
person assaulted.
Impri sonment
for life and
f ine
Cognizabl e
Nonbai1 able
Di tto
Sexual assault
by a police
officer or by .a
Impr i sonment
for life and
f i ne
Cognizabl e
Non
bail able
Di tto
Nonbai1 able
Court of
Sessions
65
t
<
public servant
or by a person
being on the
management or on
the staff of a
Jail, remand
home or other
place of custody
or women's or
chi Idren '-s
institution or
by a person on
the management
or on the staff
of a hospital,
taking advantage
of his official
position.
(
(
376A
Sexual assault
Imprisonment
by the husband
for 7 years
upon his wife
and fine
during separation.
Cogni Non
zable
bail able
(but only
on the
complaint
of ths
victim)
D1 tto
376B
Sexual
intercourse by
public servant
with person in
his custody.
Cogni Nonzable
bailable
(but no
arrest
shall be
made
without a
warrant or
without an
order of a
Magistrate)
D1 tto
376C
Sexual
Ditto
intercourse by
Superintendent of
Jail, remand
home etc.
Ditto
D1 tto
Di tto
376D
Sexual
intercourse by
any member of
the management
or staff of a
hospital with
any woman in
that hospital .
Di tto
Ditto
Ditto
Impr isonment
for 10 years
and f1ne
Ditto
<
(
66
<
(
(
(
( (
376E
( (
(
( i
(
1
(
(
Unlawful sexual
contact.
Impri sonment
for 2 years,
or fine or
both
NonBailable
cognizable
Magis
trate
of the
First
Class
Unlawful sexual
contact with a
young person.
Impr isonment
for 3 years
Cogni Hon
da i lable
zable
if
i nformation
relating to
the commission
of the offence
is given to
an Officer-incharge of a
Police Station
by the person
aggrieved by
the offence
or by any
person
related to
her/him by
blood, or
adoption or
if there is
no such
relative, by
any public
servant
belonging to
such class or
category as
may be notified
by the State
Government in
this behalf
D i t to
(
(
(
<
(
(
(
(
(
f
(
(
(
c
(
<
Unlawful sexual
contact by a
person in a
position of
trust or
authority
towards a
young person.
Impri sonment
for 7 years
and f i ne
Ditto
Non
bail able
Court
of
Session
377
Delete
Delete
Delete
Delete
Delete
503
uttering any
word or making
any gesture
intended to
insult the
modesty of a
woman etc.
Simple
impr i sonment
for 3 years
and f i ne
Cogni
zable
Nonbaiiable
Mag i st rate
o' the
i rst
Class
(
(
(
i
(
l
\
(
t
i
(
(
(
6<
J
Amendment of sub-section (6) of section 196 of the
«1, A *
<
Code
Consequent
1973.-
Procedure,
Criminal
of
•JDC’n
amendment of section 3 76 of IPC, sub-sect 1 on / a )
proposed
of section 198 CrPO shall
amended
be
fr.i io* • ng
the
in
manner:
1
The
shal 1
i <■< te r c ou r se
"se*ual
wOc'dS
by the ’"Ords ’’sexual assau't
substi tuted
ord ’’fifteen”
shai 1
and tne
v«o r'd
by
be s ‘j b s t i t‘J t ed
"sixteen”.
sect iQ<'»
Insert i on
1 s 73,-
Criminal Procedm'S;
Procedure,
Cr iminal
-•98E shall
be
of
1963
rhe Code c~~
CC’Ge
After section iSoA of tne
•973;
the fol loyw ing ne^ secf O’*1
inserted:
of
MProsecut ion
•? f f e r» ces
<j ndec su b- sec t <jn s
and (3) of section -S76E of the Indian Penal Code.-
shal 1
take
puniShahl-
uno er
sub-sections
an offence
of
cogni zance
ecu j-T.
NO
(2 1
and
{3 1
section 37<5E of the Indian Penal code. (-16 of looCi
except
upon
a
po11ce
Of
report
c o n s t. i t •j t e s u c h o f f e r. r e o r u p •j n a
r.y
the
oerson
ag r e ved
n iO t1 • e,
hv
t»‘
r.rot r.er }
f acts
h i r r’l
mace
comp lair* t
£■
SiSter
O’-
(
<
^3
c
t
<
68
r
c
k
t
<
V..
his/her
(
or sister o<,
father’s or oiother’s broths
f
er persor* re'•sLed to h-nvi/her by blood c '■
<
4
adopt i O’’*.
so pe «*<*• ■» 11e o b y t ’<1 e c ou r t ”.
!
t
/
(
4
• ’Me
(
0 *.it
~i f , <3
-000s a ■ s
lujt
S-jOCSSt'•OHS
Gree.-
-dir i-<
1 <-1
Sa^sh i
have
w ti
d
by
h a v e p u t f o r w a ’■ o
•set
I
t
k
k
{
k
f
<
I
(
(
(
(
<
v
(
(
<
<
s
Io
'• ~ propose •
'• O'
e« • s t "• »■• 9
and
»'ecomn.er«dat '• or»s made by
' AA v «
Tt
\
(
ij ode''
out
•■eport.
Op
Saksh
rt.
these
matters
to
(
'J
%
(
f
(
(
CHAPTER FIVE
r
Chanoin the Evidence Act, 1872
(
(
(
!
(
•8uh9; *-'*'s
€<»«•'s 1 de red . -
"Sa *sh'» "
<epcesencat1 es of Sakshi have suggested c<”'ee
»*i r a
E v i »j
say*’ng that
iz.
-Ct ,
(a} a^endo'ien c •?f sect i or*
*. ■. rn.j.jr the cc>'''se»''t of the co’T’D 1 a’•’'•ant
the
she
did
’‘‘Ct
•_• ‘ P not
consent.
!-’e'' !.'■'
a
s
S'iC’w
and
states
•■•er evidence be fora the court
consent,
the court shail presume that she
•.’b'. clause
sect *• on
• 55,
P»osecut r i x
clause
snal •
be
added
4
( ;
i.
(
<
(
was of geuca • i y i mmo ?* a I
character should ce de ieted and ( c ,• in sect ••on
( .
which
rape or an attempt to
that
i
( { I
assauIt
• «ercC’'.H_se i s p r o v e d a n d rhe q v e s t i •? «"• i s
he t "-e «■
•- • c.vse,
arftendf‘‘enr.s
?. pcosecut ■' C'»'i f •:« r a g g '■ a v a tec s e x »j a 1
a.’fC er^e^’e
The
a
4*“
I XX o
<
new
stat1 ng that
(
P'’osecut ion fo»" se-ua * assau11
an
attempt
CO'j-iTii t
(
se * «.»a i
assau "• t
and
1ssue,
it shall
ot be perit»issib 1 e to put any questions in
where
the question of consent •« s i r<
(
(
the c ’"oss-exami ati<?n of the comp 1 ai nant wi th
hi s/he’"
respect
to
(
P»"ev ou s sexua« h i s to r y t character or conduct ^or
(
■;ng consent O’- rhe quality of consent.
(
(
5 . • . -.
Suggest ~ o»''
is ccncerned,
note
■. T
«n'O , 1 , —
So far as the first suggestion
i'«as ev ident 1 y bee
made
i t ho Lit
tax ing
of • 9a3 whi rh had 1 nt rc>diced sec t i o»••
-It.
• he secf'on reads as follows:
• -4A
(
<
(
( .
< !
!
I
<
(
(
■;
••
’
s
<
(
■
■
*114A.
Presumption
as to absence
Presume
certain
prosecutions
consent
of
in
for rape.- In a prosecution
for rape under clause (a) or clause (b) or
clause
<
(
clause (d) or clause (e) or clause «g)
<
ot
<
(
(
•
•
sub-section (2) of section 376 o< the Iridian Penal
(
(
Code (45 of 166C*), where sexual intercourse by the
<
accused is proved and the question is
t
(
i
(
was
(
have been
without
before
the
whether
consent of the woman alleged to
the
aped and she
court
that
states
in
her
ev i denee
she did not consent, the
court sh«J 1 presume that she did not consent."
A
reading of the above section shows that it does
P»■ ov‘ide for t»ie matter wf’iich the representativcs of Sakshi
wanted.
(
5.1.3.
Recoi^mendations on section 114A
Act-. —
It
(
mentioned
(
section
i
-
1
3760.
the
aggravated
forms
Of
rape
376
or
It does not apply to sub-section
for
a
(
sexual assault" and that
i1 )
that flatter to sections ^?6A to
But the representatives of Sakshi also wanted
h
SUCh
presumption to te raised only in respect of "aggravated
provides.
< •
Evi dense -
under clauses (a) to (e) and (g) of sub-section
(2) of section 376.
(
the
is however necessary to point out that section
114A is confined only to
v
of
haa
is
exactly
what
section
1 i 4A
No amendment is therefore called fo<‘ in secto<-.
except some m-ooi f ications - by way of adaptation -
•
the light of amendment proposed by us to section 375, I PC.
’
<
K
( ;
t
%
71
6.1.4.
Modification of section 114A 0? the
(
recommended. -
(
114A be modified to read as follows:
we
Accordi ngly,
Evidence
Act
I
that section
recommended
(
(
1
”114A.
Presumption as to absence
certain'
prosecut1ons
for
of
cons?"t
i_n
assault.- In 3
sexual
i
(a) or clause
prosecution for sexual assault under
i
(b) or clause (c) or clause (d) or clause
{g)
clause
of
(^ /
Of
sub-section (2) of section 376 of
the Indian Penal
Code (45 of
intercourse
the
where
1860)
SSaUC•
<
by
proved
is
accused
and the
question is whether it was without the consent
the
other
pe rson
a 11eged
to have been sexually
assaulted and such other person states in
before
consent,
the court shall presume that
cou rt
that
h's/het
he/she did .‘Ob
evidence
tii a
of
he/s» e
di d
not. consent.
u
Ex pl a.-,a t io/. ■
‘Sexual
and
376C and 376D shall mean any of the
se^t 1 Of is
intercourse** in this section
acts mentioned in clauses (a) to
37-5 .
Expl ariat ion
to
section
(e)
of
section
375 shall also be
appl icable. ■'
5.1.4.1.
presumption
It goes without saying that the
is
a
•'abuttable
aforesa•d
presumption of law (’shall
presume’) within the meaning of section 4 of the
Ev i der.ee
Act.
I
(
c
97
72
(
Consideration
suggestion
of -Sakehi** to
<
5.1.5.
(
create presumption in respect of the ago pf,
(
We
(
Sakshi that a similar presumption be created in respect of
(
the
of
the
victim.-
<■'
('
(
in this connection refer to another suggestion of
may
We
however
not
do
see
any
the age of
the
victim.
necessity
for
such a provision since the question of age
(
(
is really and ultimately
(
<
(
i
a
matter
of
evi dence
and
be
better left to the judgment of the court.
(
(
(
5.2.1.
Suggestion No.2.- For a proper appreciation of the
suggestion
(
for
amendment
of
section
155,
appropriate to set out section 155 in full
(
(
i
i1 lustrations).
it would be
(omitting
the
It reads as follows:
f
The
credi t
(
‘155.
Impeaching credit of witness.-
r
of
witness
(
ways by the adverse party, or with the consent
a
may
be impeached in the following
of
the court, by the party who calls him:<
(
I
(
(1)
(
!
(
by
the
evidence of persons who testify that
they, from their knowledge of the witness, believe
him to be unworthy of credit;
.(2) by proof that the witness has been bribed,
C ‘
(' '
(
I
'
(
/
or
has accepted the offer of a bribe, or has received
any other corrupt inducement to give his evidence;
[
73
i
(
i
former statGfltGnts i neons i stent
<
(3)
(
with any part of his evidence which is
of
proof
by
to
1iable
be contradicted;
<
t
a
when
(4)
attempt to
it
ravish,
for
rape or an
shown
that
prosecuttjd
is
man
may
be
i
the
prosecutrix was of generally immoral character.
<
Explanation.-
<
unworthy
be
to
A witness declaring another witness
credi t
of
exami nation-in-chief ,
may
he
but
may
not,
upon
his
give reasons for his belief,
asked
be
his
reasons
in
g i ves
cross-examination , and the answers which he
be contradicted, though if they are false,
cannot
he may afterwards be
false
charged
with
giving
manner
in which the
evi denee.”
5.2.2.
credit of
<
155
sets
out
the
witness
may
be
impeached.
Section
a
specifically deals
with
Clause
prosecution for rape.
prosecution, the Act permits the man prosecuted
(4)
In such a
for
rape
(or an attempt to ravish) to show that the pro&v«jutr i - was
of generally
<
i mmo ra 1
We are of the opinion
character.
that this clause ought to be deleted.
We see no relevance
or reasonable connection between offence of sexual assault
376E) and the general
(mentioned under sections 375 to
No one can claim to have
(
forced sexual intercourse with a woman
I
immoral character of the victim.
a
r i ght
to
have
even if she is generally of an immoral character.
In this
(
(
/
74
(
(
(
{
J.
<
(
(
context, we may refer to the pertinent observations of the
Gurmit Singh (AIR
Supreme Court in State of Punjab v.
(
1996 SC 1393) which are to the following effect:
i
»:
(
(
(
1
(
<
express our strong disapproval of
must
We
•' 1 5.
the approach of the trial Court and its casting
Judge.
a
of
observations lack sobriety expected
Such
The
character of the prosecutrix.
the
stigma on
a
stigmas have the potential of not only
1 i ke
discouraging an even otherwise reluctant victim of
trial
sexual assault to bring forth complaint for
(
of criminals, thereby making the society to suffer
(
Courts are expected to
recording
(
use
which
f indings
SUCh
of
crime
sex
the
is
while
self-restraint
have
larger
the
victim
repercussions so far as the future of
<
The
the criminal escape even a trial.
by letting
and even wider
concerned
implications on the society as a whole - where the
i
criminal
the
discouraged
victim of crime
is
encouraged and
in turn crime gets rewarded.
Even
in cases, unlike the present case, where there
(
(
some
acceptable
that
the
'
the record to show
a
<
(
is
moral
to
be
drawn
from that circumstance
E<en if the prosecutrix, in a given
been
earlier,
character“
“loose
permissi ble
has
like the victim
of
(
I
inference
sexual
- to
girl
being
alone.
such
no
intercourse.
habituated
was
victim
(
I
on
K
<
(
mater ial
is
in
her
sexua1
behaviour
right
to
refuse
to
promi scuous
she has
a
case ,
submi t
Ito
75
<
to
and
anyone
to
(
hereelf
(
everyone because she is not a vulnerable object or
intercourse
sexual
(
and
anyone
by
prey for being sexually assaulted
<
<
everyone.
No stigma, like the one as cast in the
(
present case should be cast against such a witness
(
by the Courts, for after all it is the accused and
not the victim of sex crime who is on trial in the
Court.”
i
I
I
<
5.2.3.
Deletion
»
of
of
clause
section
155 of the
Evidence Act recommended.- Reference may also be
thi s
context
which,
i nter alia, deals with this aspect.
of the
Report
to
the
under
made
Report of the Law Commission
84th
i tern
in
*’V.
chapter
In
(
<
f
(
Past Sexual Hi story“ the
(
of
amend i ng
(
questions
Commission had emphasised
the
desi rabi1i ty
clause
155
(to
make
such
permissible only to the
extent
of
her
previous
sexual
(
relationship
accused
but otherwise to bar any
(
(4)
in
section
with
the
questions
regarding
character
er previous
addition of a new
Indeed
the
prosecutrix’s
the
sexual
clause,
general
experience)
(4)
clause
in
as
immoral
wel 1
section
as
(
146.
<
Commission had recommended insertion cf a new
to
(
the entire reasoning given in the 84th Report in
(
support of amendment of clause (4) in section 155 inasmuch
(
as the purport of such amendment is now incorporated by us
I
section, section 53A in the Act.
set
out
in section 146.
It is not
In that view, clause (4) i n
becomes untenable.
We
therefore
necessary
sect i on
1 55
recommend deletion of
(
clause (4) of section 155.
(
<
<
76
V
(
(
<
'(
<
(
5.3.1.
Suggestion No.3.- So far as the addition of a
clause,
namely,
(4)
c1 ause
in section
the 84th Reoort of the Law Commission
i
new
is concerned,
146
the
had
suggested
rape
or attempt to
(
(
{
fo11ow ing add i t i on:
(
(
prosecution
a
In
*• (4)
quest ion
the
where
commit ‘*ape,
(
for
consent
of
to
sexua1 intercourse or attempted sexual intercourse
*>
is at issue, it shall not be permissible to adduce
or
ev idenee
c ro s s - ex am na t i on o f the
<
immo ra 1
general
v
questions
put
to
as
prosecutr ix
character,
or as
in
the
to
her
to her previous
than
sexual experience with any person other
the
accused f«3r proving such consent or the quality of
consent."
I
5.3.2.
84th Report of the Law Commission had further
The
recommended the addition of a new section, section 53A, to
1
the following effect:
i.
v
'‘53A.
In a prosecution for
commit
rape,
where
the
rape
question
attempt
or
co
of^ consent to
sexual intercourse or attempted sexual intercourse
v
i
is at issue, evidence
of
the
character
with any person other than the accused
relevant
the
of her previous sexual experience
prosecutr x
be
of
on
shal 1
not
the issue of such consent or the
quality of consent.”
> 1
08297
ptb
Sj
? I ■I
r/f /Si
77.
i
(
(
<
Obviously,
5.3,3.
(
4
put
Questions that may be
therefore
be
reason that section 146 is confined to
the
for
1nserted
to
recommended
was
53A
section
and
cross-exami nation
i<i
is
4
a limited operation, whereas section 53A is
of
c
much wider and bars such evidence to
be
in
adduced
<
any
manner whatsoever.
/
i
Rei teration
5.3.4.
the
of
84th Report and reference
Reform
made in the
recommendat ions
to
South
New
the
Wales
Law
(
Commission's recommendations.- We are in agreement
(
84 th
I
Commission and do herewith reiterate
f
of
4
above
with the
the
recommendations
Law
in
contai ned
the
Report
of
them.
In this context, however, we may refer to a set
recommendations proposed by the New South Wales Law Reform
Commission
to
amend section 409B of the Crimes Act, 1900
(New South Wales).
Sub-section (2) of section 4098 of the
New South Wales Act provides that
offence
proceedings,
reputation
of
the
evidence
“ in
prescri bed
sexual
the
sexual
relating
complainant
is
to
inadmissible" .
Sub-section (3) makes evidence of any sexual experience or
1 ack
of
sexual
experience
of
the
complainant equAlly
inadmissible except in certain specified situations.
New
4
The
South Wales Law Commission has proposed retaining the
existing sub-section (2) as clause (a) of sub-section
and
to
add
a new clause, clause (b)
(2)
n sub-section (2).
It has also proposed addition of sub-sections (3) to (11).
(
(
4
i
(
/o5
76
/
<
We do not however propose to set out ell the said proposed
(
sub-sections,
(
fol lows:
(
reads
which
(2).
sub-section
except
as
(
(
to
proceedings
In
"(2)(a)
which
this
secti on
to
the
sexual
<
relating
evidence
applies,
(
reputation of the corriplainant is *nadmiss tble.
evi dence
(2)(a),
(b) Notwithstanoing sub-section
about any sexual experience or sexual activity, or
i
lack of experience or activity, of the complainant
/
not
shal 1
relates
be inadmissible merely because it also
of
reputation
sexual
the
to
the
comp!ai nant.”
5.3.5.
For ready reference, we are enclosing both section
f
the
4096 as it now stands as well as
recommendat i on
for
(
its
(
(
( <
amendment
as
Reform Commi as i on.
suggested
(The
the New South Wales Law
by
recommendati on
was
made
in
need
to
draw
any
involved
and
November IS98.) (Ann^xure-F)
t
5.3.6.
We
do
not-
think
that
the
highly
we
<
from
inspi ration
> t
provisions suggested by the New
Commission
(
k
by
South
(
1
(
k
(
I
<
Law
Reform
way of clause (b) of sub-section (2) or by
way of sub-sections (3) to (7) of S.209-6.
as suggested herein a*"e sufficient.
(
Wales
intricate
The
prev i si on
11 i s, of course,
f oi-
1(^1
79
!
<
the
(
lines of the suggestions made by the New South
(
Commission should be made.
government
to
I
whether any provisions..onTthe
(
decide
Wales
Law
<
<
In
5.3.7.
the light of changes proposed by us in section
375, the language of section 53A
<
section
146,
in
recommended
of
and
clause
(4)
in
}
the 84th Report of the Law
c
/■
Commi ss i on, have to be modified and adapted.
i
i
<
<
t
5.3.8.
Consequential amendments recommended
section
53A and proposed clause (4) of section 146 of the
Evidence
Act. -
in
proposed
i
Accordingly,
that
recommend
we
the
following amendments be made in the Evidence Act:
4.
5.3.8.1 .
After section 53, the following section be
inserted:
f
“53A.
In
for
prosecution
a
an
offence under
section 376, 376A, 376B, 376C, 3760 or 376E or for
attempt to commit
c
question
of
any
such
where
the
consent is in issue, evidence of the
character of the victim
sexual
offence,
<
experience
his/her
of
wi th
any
<
previous
person shall not be
(
■
relevant on the
i ssue
of
such
consent
or
the
quality of consent.”
* ♦*
5.3 . a. 2 .
In
section
of the Evidence Act, the
following clause shall be added after clause (3):
(
(
(
'4
<
80
(
(
*'(4) In a prosecution for an offence under section
(
376, 376A, 376B, 376C, 376D or 376E or for attempt
(
to
(
consent 1s i n issue, it shall not
(
to
comm i t any such offence, where the question of
ev idenee
or
to
cross-examination of
the
vi ct im
adduce
general
immora1
character,
previous sexual experience
be
permissible
put questions in the
or
wi th
as
to
hi s/her
as
to
hi s/her
any
person
f or
proving such consent or the quality of consent.”
t
(
ei
(
(
<
(
(
CHAPTER SJX
(
Miscellaneous Suggestions of Sakshi
!
(
<
(
t
6.1.
The representatives
of
three
made
have
Sakshi
other suggestions which we have set out under items 11, 12
and 1 3
in
chapter
two
of
this
Report.
suggestion under itern 11 is concerned,
So
may
we
far
as
ref er
to
(
< '
i
section 273 of the Criminal Procedure Code, which requires
that "except as otherwise expressly provided, all evidence
taken
in
the
course
of
the trial or other proceeding,
shall be taken in tne presence of the accused or when
personal
attendance is dispensed with,
his pleader".
principle,
^e
do
founded
not
upon
screen
in
4
the
th i s
that
and
genera 1
request
the
<
it may be open
<
court
a
<
to
provide
such a manner that the victim does not see the
acc used
1
concerning
enqui ries
accused, while at the same time providing
to
in the presence of
In an appropriate case,
to the prosecution to
i
t h i nk
his
natural justice, should be done
away with altogether in trials
> e x u a 1 o f f e n c e s.
(
an
opportuni ty
listen to the testimony of the victim
and give appropriate ?nstruet ions co his advocate
for
effective cross-exami oation.
view to
However,
an
(
(
i
(
<
wi th
a
<
i
allay any appre»»ensions on this score, a
prov iso
can
be
*
<
added to section 273 of the Criminal Procedure Code to the
following effect-
(
(
lo?
62
( •
(
(
”Provided
(
below sixteen years who is alleged
(
subjected
(
offence, is to be recorded, the
(
appropriate measures to ensure that such person is
(
(
not
conf rooted
(
(
t i me
nsuring the right
<
the accused”.
(
(
(
‘
i
t
<
i
that
to
where
sexua1
by
the
evidence
of a person
have
to
been
assault or any other sexual
may,
court
take
the accused while at the same
of
cross-examination
of
The proviso can be placed above the Explanation to
(
the Section.
<
6.2.
The suggesti'?n mentioned under item 12 is, in
our
(
op in i on,
I
impractical; it is not possible to accede to the
t
said request.
The same comment holds good with respect to
(
the proposal under item 13. . We are
make
i
t
t
k
•«
unable
to
any recommendation for the present in terms of or on
the basis of the aforesaid
<
therefore
requests
of
Sakshi.
w
k
83
(
(
i
CHAPTER SEVEN
(
CONCLUSION
(
(
7.1.
On
basis of tl'ie discussions contained in the
the
<
preceding chapters, the Commission is
of
considered
the
t
op i n ion
that
the following amendments need to be carried
out in the Indian Penal Code, I860: the Code
Procedure,
Crimi nal
of
1973 and the Indian Evidence Act, 1872 .
F
7.2.
Changes recommended in the Indian Penal Code, 1860
7.2.1.
Substi tut ion
section 37 5 of t he I PC
existing
of
recommended.- The existing section 375 be
subst i tuted
by
the following:
“ 3 7 5.
•Sexual Assault:
(a)
penetrating the vagina (which term
the
labia
Sexual assault means
majora),
the
anus
ehal 1
include
or urethra of any
(
(
person with t
i)
any part of ths body of another person
ii)
an
object
man i pu1 ated
by another person
(
4
(
except where such penetration is carried
out
for
(
proper hygienic or medical purposes;
(
(
z
84
(
\ (
(
(
(b)
person
(
<
(
<
so
as
part
of
the
body
another
of
to cause penetration of the vagina
(which tern! shall include the labia
(
(
manipulating any
majora),
the
(
anus or the urethra of the offender by any part of
(
the other person’s body;
(
(c)
(
(
introdur ■>ng any part of the penis of a person into
the mouth of another person;
(d)
engaging in cunnilingus or fellatio; or
(e)
conti noing
!
<
se.xua 1
assau1t
as defined in clauses
(
(a) to (d) above
(
(
in c i r c unista nee s f a 1 ling
under
any
of
the
six
I
fo11owing descriptions:
* v
First- Against the other person’s will.
i
(
Secondly- Without the other person’s consent.
Thirdly- w*th the other person’s consent when such
i: .
(
<
consent
has been obtained by putting such other person or
any person in whoo? such other
fear of death o- htu t.
i
person
is
interested,
in
I/O
-■ 65
(
(
(
(
<
c
(
Fourthly- Where the other person is a female, with
(
her consent, when the man knows that he is not the husband
(
of such other person and that her consent is given because
(
(
. !
(
I
believes that the offender is another man to whom she
she
(
is or believes herself to be lawfully married.
(
i
(
the
of
F i f th 1 y- w i t-h the consent
other
person,
<
when,
<
(
the
at
t i me
of giving such consent, by reason of
<
unsoundness of mind or into* icat ion or the
administrati on
through
another of any
i
by
of fender
the
personal 1y
or
(
stupefying or unwholesome substance, the other
person
is
<
unable
to
understand the nature and consequences of that
to which such other person gives consent.
i
<
Si xthlyconsent.
L
Wi th
or
w i thout
other
the
person9s
(
when such other person is under sixteen years of
age.
<
<
i
Explanation/:
1
(i
’
6
Penetration to any extent is penetration for
f
the purposes of this section.
(
Exception:
Sexual s'■‘tercourse by a man with his own wife,
(
not
<
the wife not being under sixteen
years
of
*9*,
is
(
sexual assault.“
t
Further we are not satisfied
that
the
Exception
shou1d be de 1eted.
(paragraphs S.i.2 arid 3.1.2. !, supra)
<
(
i
(
IM
8G
(
c*
of section 37$ of the IPC reG
Recast1 ng
7.2.2.
(
•Section 376 shall
be recast as follows:
(
(
(
(
(
(
(
(
"376 .
Punishment__ for
except
i r»
the
cases
sexual
assault
provided
for
(1)
Whoever,
by sub-section (2),
commits sexual assault shall be punished with imprisonment
t
of either description for a term which shall not
than
seven
1 ess
be
years but which may be for life or for a term
<
which may extend to ten years and shall also be liable
f i ne
to
unless the person subjected to sexual assault is his
own wife and is not under sixteen years of age,
case,
he
sha 1 1
be
in
wh i ch
punished with imprisonment of either
description for a term which may extend to three years and
f
shall also be liable to fine.
If the sexual assault is committed by a person
( k
in
author ity
towards
the person
assaulted or by a near relative of the
person
assaulted,
a
position
of
trust
or
shal 1 be punished with rigorous imprisonment for a
he/she
(
term which shall not be less than ten years but which
may
(
to
extend
1 ife
imprisonment and shall also be liable to
(
fine.
i
Provi ded
(
that
the
court
may,
special reasons to be mentioned in the judgment, impose
sentence
of
(.
(.
(2)
a
imprisonment for a term of less than minimum
punishment presc-'ibed in this sub-section.
k.
for adequate and
Whoever,-
1/^
67
(
(
(
<
<
(a) being a police officer commits sexual assault-
?
(
(
(
(i) within the limits of
the
polico
to
stati on
which he is appointed;
i
<
(1i)
in the premises of any station house whether
<
or not situated in the
r
station
police
to
wh i ch
is
he
'i
.I
<
{
appointed;
(iii) on a person in his custody or in the custody
i.
(.
of a police officer subordinate to him;
(b) being a public servant, takes advantage of his
official position arid commits se>ual assault on
person
a
(
in his custody as such public- servant or in the custody of
a public servant subordinate to him; or
of
(c) being on the management or on the staff
a
Jai 1, remand home or other place of custody established by
or
under
any
1 aw
for
the
time being in force or of a
women’s or chi1dren’s institution takes advantage
of
his
official position and commits sexual assault on any inmate
f <
of such jail,
(d)
hospital,
remand home, p1 ace or i nst i tut i on;
bei ng
or- the management or on the staff of a
takes advantag
of
his
of f i ci a 1
P‘?s i t i on
commits sexual assault o«* a person in that hospital;
and
1
t
I
cc
/Z5
86
C (
(
(
(e)
commits sexual assault on a woman knowing her
to be pregnant;
(
(
(
(
c
(
when
(f) commits sexual assault on a person
such
(
(
person is under sixteen years of age; or
(
(
\
(
(
(
(o) comm ■< ts gang sexual assault,
she 11
i th rigorous imprisonment for a term
punished
oe
c
f
be
may
which
which shall not i «e less than ten years but
<
to<- life and shall also be liable to fine :
(
th at
provi ded
ths
may,
court
for adequate and
special reasons to be mentioned in the judgment,
sentence
impose
a
of i m p r i s o r» me » i t o f either d e s c r i p t i o n for a t e r m
of less than ten years.
x
4
Explanation 1Where a
k
v
t
assault
by
person
subjected
is
to
sexual
more in a group of persons acting in
one
fur the rance of the i r common inten11on, each of the persons
k
t
shal 1 be deemed to
wi thi n the mean i
k
have
comm i tted
gang
sexua1
assault
*jf thi s sub-sect i on.
(
4
Explanation
4
an Inst 1 tut ion, whether called an orphanage or a home
2.-
"tcmsM’s or ch i1dren’s i nst itut i on” means
1
home or an
neglected
women
rh iIdrsn
i nst i tut 1
c a 11 - d
*uy st her name, which is established
and ma Intai ned r<«•
dii Idren.
I
widows’
for
a
and
care
o<
women
t
89
(
(
Explanation
(
(
(
means
“Hospital“
3.-
precincts of the
the
(
’
hospital and includes the precincts of any institution for
the
reception
and
during
persons
of
treatment
convalescence or of persons requiring medical attention or
(
rehabi1i tation.“
<
(paragraph 3.2.3, supra)
(
7.2.3.
376A
section
in
Modification
recommended.- Section 376A shall
I PC
the
of
<
(
read as follows:
i
Sexual assault by the husband upon his wife during
’’376A.
separationWhoever commits sexual assault upon his wife,
who is living
from
under
custom
or
separati on
any
a
under
him
separate 1y
or
decree
of
<
(
usage, without her
(
i mpr i sonment
w i th
consent, shall be punished
ei ther
of
(
description
for
a
term which shall not be less than two
(
years and which may extend to seven years and
shal 1
also
be liable to fine. ’’
i
(paragraph 3.3.1, supra)
(
(
7.2.4.
Amendment of sections 3766,
recommend
enhancement
of
pur.i s h me nt
punishment of not less than five
added
an
secti one.
Explanation
376C
which
years.
3760.-
with
a minimum
We
have
to
apply even in the case of sexual
the Explanation to this section.
recti on
(
(
intercourse” to
mean any of the acts mentioned in clauses (a)
Explanation
also
wi 11 govern all these three
The Explanation defines "sexua1
section 375.
We
and
to
(e)
of
(
375 wi11 however
intercourse as defined by
I
//r
90
the modified sections 376B, 376C and
Accordingly,
3760 of the IPC shall read as follows:
(
(
(
(
(
(
Sexual
1n
custody.-
hi s
Whoever, being a public servant, takes
person,
any
public servant or in
who
or
in his/her custody as such
is
the
custody
to
have
of
servant
public
a
1ntercourse
with
to
the
punished
with
imprisonment of either description for a term which
shal 1
to
subordi nate
him,
sexual
not
1ntercourse
him/her, such sexual
amounting
(
of f ence
(
i nducee
and
position
off ici al
advantage of his/her
seduces
person
with
intercourse by public servant
’'3768.
sexua1
of
be
shal 1
assau1t,
i
(
not
be
than five years and which may extend to ten
less
(
years and shal1
also be liable to fine.
(
(1 •
(
(
(
Provided that the
< <
special
(
sentence of imprisonment for a
(
years.
’’Sexual
Explanation:
than
five
term
of
less
i ntercourse’’
in
this section and
<'
(
(
t
( (
(
i
(
< v
( (
( (
'
(
and
<
(
(
adequate
reasons to be mentioned in the judgment, impose a
f
(
(■
for
may.
court
(
sections
376C
mentioned
in
and
3760
clauses
shal 1
(a)
to
mean
any
of
the
acts
(6)
Of
section
375.
Explanation to section 375 shall also be applicable.”
”376C.
Sexual _i nter_‘^ou_Ls_e
remand
home,
etc. -
by
of
superi ntendent
.lai 1 .
Whoever, being the superintendent or
manager of a jail, remand home or other place
of
custody
(
///
81
(
(
(
/
established
by
or
any
under
women’s
or
of
hi s/her
official
takes
(
institution
and induces or
posi tion
or
(
to have sexual intercourse with him/her, such
(
sexual
(
with imprisonment of either
(
seduces any inmate of such Jail,
institution
(
chi Idren’s
force or of a
advantage
law for the time being in
home,
remand
place
sexual intercours'e not amounting to the offence of
assault,
sha 11
be
pun ished
description for a term which shall not be less
than
five
(
(
years
and wfiicli may extend to ten years and shall also be
(
liable to fine.
(
(
Provided t^at the
adequate
for
may,
court
and
(
special
reasons to be mentioned in the judgment, i mpose a
(
sentence of imprisonment for a
term
1 ess
of
than
f i ve
(
years.
(
Explanation
1
'‘•Superintendent"
remand home or othe
place of
in relation to a jail,
custody
or
a
women’s
(
or
children’s institution includes a person holding any other
(
in such jail, remand home, place or institution by
(
or
(
offi ce
virtue of which
he/she
can
exerci se
any
authori ty
control over its i nmates.
(
(
Explanation
2.-
The
expression
women’s
or chiIdren’s
(
i n s t i t u t i on '* shall have the same meaning as in Explanation
2 to sub-section (2) of section 376.
>
1/7
92
(
(
<
r
<
(
(
(
c (
(
Sexual iritercoursH by 6ny (Bomber of the? manafign^ot-
376D.
of a hospi tai with any woman in that hospital.-
(
or
i
Whoave , being on the management of a hospital or being on
I
staff
{
pos111 on
h i s/hsr
of
advantage
of
a
hospital
takes
and
has
sexua1
intorcomrso with any person i n
staf f
the
(
/
not
that hospital, such sexual intercourse
I
the
I
t
of f ence
imprisonment of either description for a term which
not
less
be
to
shal 1 be punished with
assault,
sexual
or
amounti ng
shal 1
than five years and which may extend to ten
years and shall also be liable to fine.
Provided
that
cou rt
the
may,
for adequate and
(
speci al reasons to be mentioned in the judgment,
(
sentence
of
f or
ifopr i sonment
a
a
i mpose
term of 1 ess than five
(
years.
<
(
(
ExplanationThe expression
same
meani ng
as
in
’’hospi tai "
have
shal 1
the
Explanation 3 to sub-section (2) of
section 37 6.*’
(
{
(paragraphs 3.4 $ 3.4.1, supra)
(
(
7.2.5.
!
(
Insertion of new section 376E recommended•" A
section,
n arris 1 y,
section
new
376E be inserted in the IPC in
f
the following terms:
(
\
(1) Whoever, with sexual
<
”376E.
(
intent, touches, directly or indirectly, w i th
the
(
t
!
body
or
w i th
an
object,
any
a
part
of
part of the body of
I
S3
(
(
such
person.
another person, not
being
the
spouse
of
the
of
such
other
person,
shal 1
be
term
which
may
without
consent
a
(
punished with simple imprisonment for
(
extend to two years or with fine or with both.
i
(
t
with sexual intent, invites, counsels or
(
indi rectiy,
(
with a part of the body or with an object, the body of any
(
Whoever,
(2)
incites a young person to touch, directly
person,
the body of the person who so i nv i tes,
inc1udi ng
counsels or
or
or
inci tes,
touches,
wi th
sexual
i ntent,
directly or indirectly, with a part of the body or with an
object
any
of the body of a young person, shall be
part
(
(
punished with imprisonment of either description which may
<
extend to three years and shall also be liable to fine.
<
(
authority
(3)
Whoever being in a position of trust or
towards
a young person or is a person with whom the young
person
is
(
(
a
in
relationship
of
dependency,
touches,
<
directly or indirectly, with sexual intent, with a part of
the
body
or with an object, any part of the body of such
young person,
either
shal 1
description
be
puni shed
which
may
with
impr1sonment
<
(
of
extend to seven years and
sha 11 also be liable to fine.
(
(
(
Explanation:
sub-section
“Young
(2)
means
person
in
this
sub-section
and
a person below the age of sixteen
years.“
(
(
(paragraphs 3.5
3.5.1, supra)
(
(
(
I
c<
((
(
(
c
94
(
(
(
(
(
(
7.2.6.
(
deserves to
(
effected by
(
(
(
(
Deletion
of
section
be
deleted
in
us
in section 375 to 376E.
377.-
the
Section
1 ight
of
I PC
377,
changes
the
We leave persons
having carnal intercourse with any animal, to
thei r
Just
deserts.
(
(
(paragraph 3.6, supra)
( <
(
7.2.7.
A men drrent of section 509 , I PC.- We recommend
that
the existing section 509 be amended as follows:
i
“509.
(
Word,
or
act
intended
intending
to
insult the modesty of any
gesture
to
the
Insult
modesty of a woman:
<
(
(
(
Whoever,
woman, u 11 r s a Ti y
exhi bi ts
any
o r d , makes any
object
intendi ng
sound
that
or
gesture,
such word or sound
(
shall be heard, or that,such gesture or
object
be
shal 1
(
seen,
by such wo^iran. or intrudes upon the privacy of such
(
woman, shall be punished with simple
(
(
term
which
may
extend
imprisonment
for
a
to three years and shall also be
liable to fine. ’*
(paragraph 3.7, supra)
(
(
(
7.2.8.
New
sectjjsn
that a new sectic
_ I PC recommended.- We recommend
166A be introduced in the
I PC
following terms:
/
(
r
■
r
“*6GA.
wn ;
being a public servant-
in
the
95
(
(
(a)
knowingly
(
any direction of
disobeys
(
the
(
attendance
(
purpose of investigation into an offence or
1 aw
him
f rom
place
of
prohibiting
at
any
the
requi ring
f
(
any person for the
other
(
(
matter,
Of
t
(
(b) knowingly disobeys any other direction
of the law regulating the manner in which he shall
such
conduct
i nvestigation,
(
to the prejudice of
t
any per sori, shal 1 be
for
imprisonment
wi th
which may extend to one year or with
term
a
puni shed
(
(
fine or with both.”
(paragraphs 3.8 s 3.8.1, supra)
f
A
7.2.9.
No
def i n i 11 on
the
of
expression
"consent“
is
(
called for at this stage.
(paragraph 3.9, supra)
(
(
7.3.
Changes
recommended
in
the
Code
Criminal
of
(
(
Procedure, 1973
(
sub-sect i ons (3) -ind (4 j in section
(
1973.- We recommend
(
that the following two sub-sections be inserted in section
(
160 of the Code of Criminal Procedure:
(
7.3.1.
Inserti on
of
16Q of the Code of Criminal Procedure,
(
”(3) where under this chapter, the statement of
f ema1e
1s
to
be
recorded
e i ther
as
information of an offence or in the course
a
f i rst
of
(
(
an
(
<
96
V ' (
i
‘
i
investigation
(
against whom an offence under sections
(
376,
(
i
(
i
into an offence and ehe is a person
(
i
Pena 1
Ind ian
Code
been
have
to
al 1 aged
is
statement shall be
the
attempted,
cornmi tted
376E or 509 of the
376C, 3760,
3768,
376A ,
375,
354,
recorded by a female police officer and in case
a
i
i
off icer
f ema 1e
po1ico
f ema 1e
government
and
v i c i n 11 y
not
is
aval 1 able,
by a
in
the
av a iTable
servant
in case a female government servarit
is also not available, by a female
author ised
by
an organisation interested in the welfare of women
or children.
Where
in
any
case none of the alternatives
me n t i on ed ■> »■* su b- s e c t ion (3) can be
for
fol1 owed
the reason that no female police officer or female
government
a female authorised by ar?
servant
welfare
i
organisation interested in the
(
and
(
of the police station shall, after
chiIdren
reasons
the
of
women
is available, the officer in charge
recording
in writing, proceed with the recording of
statement
of
SO oh
fema 1e
v i ctim
in
presence of a relative of the victim.^
i
(
the
(paragraphs
4.2.3
&
4.2.3.1 , supra)
the
I
97
<
of the proviso to sub-section (1.J—of
(
7.3.2.
(
section 160.-
in
(
l
r
(
the proviso to sub-section (1) of section 160 from fifteen
<
years to sixteen years.
(
Modification
age
recommend raising the
mentioned
(paragraph *1.3, supra)
I
I
7.3.3.
of the proviso to sub-section (1) of
/
ec• jnH"er>ded . — we recommend that in addition to
(
Substi tut j on
sec 11 or* 160
the a b o v e mo di f i c a t i on, the proviso to sub-section (1)
(
section 160 be substituted to read as follows:
(
“Provided t^'St no ma 1 e person under the age of
be required to attend at any
*<?<Tian shall
years
P1 ace o10er t»ian th
16
in
P lace
person or
^•oman
statement,
a relative <:• r
such
male
Wh i 1 e
recording the
frlend
or
resides.
a
which
a
social
4
1
worker of the choice of the person whose statement
is
be i ng
present.
recorded
sha 11
The relative,
be
al lowed
to remain
*
friend or social worker so
allowed to be present shall not interfere with the
recording of statemer«t in any manner whatsoever.”
(paragraphs ^.3.1 * 4.3.2, supra)
7.3.4.
if!-
the
Insert ion of a r»ew sect io*
Code
of
that the following
Cri minal
namely,
C-riminal Procedure ,
ri
section
164A
1 97 3 . - We recommend
164X. be inserted in the Code of
iiij»
v
H
i
f
I
r
r( £
“164A.
(
any
offence
Where, during the stage when
(1)
under
section
376A,
section
376,
f(i
section
( .
section 3^6E is
(
I
(
(
(
(
3768,
37 6C,
section
under
3760
section
get the victim examined by a medica'i
proposed
by
such examination shall be conducted
expert,
is
it
and
i nvesti gati <?n
a
medica1 practitioner , with the consent
registereo
of the victim or of some person competent to
sueh r.qnse*• t <:• n i«i s/1*er behalf.
g i ve
In all cases, the
(
1 t i m s hou 1 d be s e«‘i t f o r such e x afi• i na t i on withou t
<
any del a*.
<
r
(
a
Pi'Ovidec that if the victim happens to
be
shal 1
be
fema 1e,
the
exami nation
med i ca1
conducted by a female medical officer, as
far
possi bl e.
(
(2} The registered medical practitioner to
(
(
whom
the
examine
victim is forwarded shall without delay
the
person
the
report
a
prepare
and
of
result
(
speci fi ca11v
<
examination and g i v ing the fo11ow i ng detaiIs:
record ing
hi s
(
{ i } the name arid address of the* victim and
(
the person ny whom he/she was brought,
.
{ii) the age of the victim,
marn.s
i
(
(
(
i njuries,
if any, on the
per son
genera 1
menta 1
cond iti on
of
the
IM
<
(
(
victim and
(
(v)
(
reasonable detail.
other
I
in
particulars,
material
i
report shall state precisely the
The
<
(
reasons fo r e ach conc1us ion a r r i ved at.
<
(4) The report shall
record
c onsent of the victim or of some person
th
that
spec i f ical 1y
g I ve sueh consent on
c.-jfi'peterit
hi s/her
(
behalf
(
to such e * ami nat i on had been obt a i ned.
(
e M.ac.t
The
•5 •
time
of commencement ano
noted
completion of the exami nation shall also be
in
the
report,
shal 1
practi tloner
report
to
the
without
the
investigating
to
the
< orward
i 73
sect ion
and
med i ca1
reg istored
de 1 ay,
f orward
the
officer, who shall
referred
Magistrate
(
to
(
(
(
in
as part of the documents referred to
(
in clause (a) of sub-section (5) of that section.
I
(
huLhing
• 6)
construed
as
in
rendering
be
thi s
section
shal 1
1awf u1
any
exami nation
(
•» thout the consent of the victim
(
any
person
(
competent to give such consent on his/her behalf.
( pa <■ a graphs 4.5.1 and 4.5.2, supra)
<
t
(
\
(
(
'^5
(
7.3.5.
(
(
(
Insertion
Code of
the
in
53A
section
new
of
Criminal Procedure recommended.- The proposed section
53A
sha 11 read as follows:
(
1
“53A.
(
a
v?*heri
(i :•
person accused of any of the
offences under sections
3768,
376A,
376,
376C,
i
(
3760 or 376E or of an attempt to commit any of the
(
sai d
off ences,
is arrested and an examination of
(
th i s
section,
de 1 ay
to
the
registered medical practitioner by whom he/she
is
his/her person is to he made under
he/she
sha 1 1
be
without
sent
<
I
to be exami »-ied.
(
(2)
The
medical practitioner
registered
(
conducting such examination
(
(
'
(
(
examine
person
arid
prepare
recording
the
resu1t
such
specif ical1y
de lay
without
shal 1
report
a
of
his
e x am i n a t i on a nd g i v i n g the following particulars:
v
the
(i)
C 4
accused and the
name
person
and address of the
by
whom
he
was
LM'<*ught,
(
(
(ii) the age of the accused.
(
( ' i
tne person
<
(
)
t1 ’0
marks of i nJ ur y,
accased, and
i r any, on
I
1
1G I
( .
4
(1v) other material particulars in
/
reasonable detail.
t
(3) The report shal"
state
preci seiy
the
i
reasons for each conclusion arrived at.
f
(4 )
T lie
exact
t i me
of commencement and
comp 1 eti on of the exarni nat i on shal 1 a 1 so be
in
the
report,
practitioner shall,
and
the
reg istered
without
delay,
noted
med ica1
forward
z
the
z
officer, who shall
<
report
to
the
investigating
forward
it
to
the
sect ion
173
as part of the documents referred to
Magistrate
referred
to
in
(
in clause (a) of sub-section (5) of that section."
(paragraph 4.6.2,
supra•
t
<
7.3.6.
the
Consequenti a 1
Code
of
Consequent
amendments in the First Schedule to
Criftii nal
upon
the
Procedure,
1973
recommended. -
existing entries in respect of sections 376 to
and
509
(
proposed amendments in the IPC, the
377
(
will have to be substituted and entry in respect
(
of new section 376E,
IPC
win
have
to
be
3760,
i nserted
<
as
under:
<
<
376
Sexual assault
Impr i sonment
for life or
impr isonment
for in years
6: »'j
Sexual assault
by a man on
h i s own wife
Di tto
Nonbailable
Court of
Sessi ons
V
i ns
Impr isonment
for 3 years
and f ine
<
NonDitto
cogni zable
L- i ttO
(
v
(’
,(
1G2
c <
(
(
I2z?
5
</<
(
being
under 16 years
of age.
(
(
(
Sexual assault
committed by
a person in a
position of
trust or
authority
towards the
person assaulted
or by a near
relative of Tj?e
person assaulted.
(
(
(
(
Impr isonment
for life and
f i ne
Cogni
zable
Nonbai1 able
Gi tto
Impri sonment
for life and
f i ne
Cogniz&b i e
Nonbailabia
Di tto
(
S e x u a 1 ass a •_ < 11
by a police
officer or by ?
public servant
or by a person
being on the
management or
the staff of
Jail, rema r<d
home or other
place of oustod
or women’s or
chi Idren’s
institution or
b y a p« e r s o ri o • *<
the management
or on the staff
of a hospital,
taking advantage
of his official
pos i t ion.
(
(
(
(
(
(
i
(
(
(
376A
Sexual assault
Imprisonment
by the husband
for 7 years
upon his wife
and f i ne
during separation.
Cogni Nonzable
bai1 able
(but only
on the
comp1 a int
of the
victim) _
Di tto
3768
Sexua1
intercourse by
public servant
with person in
his custody.
Cogn i- Non
zable
bail able
(but no
arrest
shall be
made
without a
warrant or
without an
order of a
Mag i strate)
D i ttc»
(
<
(
(
(
(
(
<
/
(
(
(
Imprisonment
for W years
and fine
1^
376C
Sexual
Ditto
intercourse by
Superintendent of
jail, remand
home etc.
Ditto
Ditto
Ditto
376D
Sexua1
intercourse by
any member of
the management
or staff of a
hospital with
any woman in
that hospital.
011 to
01 tto
Di tto
D i tto
Un lawful
contact.
>■ «j a 1
Impi son me nt
for 2 years,
or fine or
both.
NonBailable
cognizable
Magi strate
of the
F1 rst
Class
Unlawful se-ual
contact with a
young person.
IfHpr i sonrfient
for 3 years
Cogni Non
zable
bail able
if
internation
relating to
the commission
of the offence
is given to
an Off leer-incharge of a
Pol ice Station
by the person
aggrieved by
the offence
or by any
person
related to
her/him by
blood, or
adoption or
if there is
no such
relative, by
a»iy public
servant
belonging to
such class or
category as
may be notified
by the State
Government in
this behalf
Di tto
Nonba11able
Cou r t
of
Sessi<
376E
s
Unlawful sexual
contact by a
person in a
position of
i'.
•i
Impr1sonment
for 7 years
and fine
Di tto
I'
i
<'
IM
1 04
(
(
( .
trust or
authority
towards a
young person.
(
( '
/
(
>*
509
(
(
Delete
De 1ete
De 1ete
De 1ete
Delete
Uttering any
word or making
any gesture
intended to
insult the
modesty of a
worn.an etc.
S i mp1e
impr i sonment
for 3 years
and f i ne
Cogni
zable
Nonba i1 able
Magis
trate
of the
First
Cl ass
(paragraph 4.7, supra)
7.3.7.
Code
Amendment c»f sub-section (6) c»f section 198 of the
of
C-r imi na.l
1973.-
Procedure,
(
proposed
<
of section 198 CrPC shall
Consequent
upon
amendment of section 376 of IPC, sub-section (6)
amended
be
in
f ollowing
the
manno #■:
(
(
shall
be
substituted bv the words “sexual assault” and
the
The
(
wor ds
i n ter course '*
"sexua1
t
word
“fifteen”
shal 1
be substituted by the word
(
“si xteen”.
(
(paragraph 4.8, supra)
(
(
7 3. p
I nsert i or. _of_4'^,J!i
C r1m i n a 1
sect i on
1988
of
the
of
Code
P roce d u r e, j 523•~ After section 196A of the Code
of cr imi na1 Procedure, 1973,
the
foil vv/ i n g
new
section
(
1988 shall be insertec
(
“Prosecut ion of of fences_ under
sub-secti ons
(2)
and (3) of section 376E of the Indian Penal Code
i
(
I
an offence
of
cognizance
court
shal 1
take
(
punishable
under
sub-sections
(
section 376E of the Indian Penal Code (45 of 1860)
(
except
<
constitute such offence or upon a
No
c
«
by
i
aggr i eved
person
tl'ie
which
comp 1 a i nt
made
of fence or by
the
by
brother,
mother,
hi s/her father,
facts
of
report
po1i ce
a
upon
of
(3)
and
(2)
<
or
si ster
by
(
his/her fathe ’ s or mother’s brother or sister oi ,
by any other person related to him/her by blood or
<
if so permitted by the court' .
(
adopt i or»,
supra)
(paragraph 4.9,
t
i
Amendment
of
sect ion
Procedure,
1973.-
A
prov i so
added under
sect i on
7.3.9.
(
to the following effect be
above
273
Or imi na '■
of
Code
T
Explanation
the
clause
there i n:
"Prov ided
that
the
where
ev idenee
been
<
assault or any other sexual
(
take
(
below sixteen years who is alleged
subjected
of fence,
to
sexual
of a person
is to be recorded, the
to
court
have
may,
<
apprnpr- i ate measures to ensure that such person
not
conf rented
by
the accused while at the same
t i me er.sur i ng the r i ght
of
cross-examtnati on
<
of
(
the accused”.
■4
(
(paragraph 6.1, supra)
(
7.4.
Changes
r econxnended
in
t.|-iq Indian Evidence. Act
(
1872
u
(
f
(
131
( '
(
C (
(
( (
(
7.4.1.
(
(■
recommended.(
(
Evidence
Modificfition of section 114A of the
Act
recommend that section 114A be modified
We
to read as follows:
i
of
Presumption a> to absence
consent
in
(
certa in
(
prosecutions
for
sexual
assau1t.- In a
prosecution for sexual assault under (a) or clause
(
(b) or clause (c) or clause (d) or clause
(
ciause
of
•9 •
by
(
qijestion is
hether
(
the
person
where
1860)
is
accused
the
i C'te r cou ’’ so
proved
evidenee
before
al 1 eged
i.
and the
the
ecu r t
of
to have been sexually
that
hi s/he r
he/she did not
consent, the court shall presume that
(
sexual
it was without the consent
assaulted and such other person states in
(
or
sub-section (2) of section 376 of
the Indian Penal Code (45 of
other
(*)
he/she
did
not consent.
(
I ( i
/
(
1
Exp 1 a«’«ati on:
and
sections
“Sexual intercourse” in this section
376C and 3760 shall mean any of the
acts mentioned in clauses (a) to
Explanation
v.
375.
( 1
appiicable. "
to
section
(el-
of
375 shall also be
(paragraph 5.1.4, supra)
( .
i.
(
(
(
(
(
(
section
I3Z
I
(
(
<
i
(
(
(
(
presumption
presumption is a rebuttable
presume")
aforesaid
the
that
saying
wi thout
goes
It
(“shal1
law
of
i
i
within the meaning of section 4 of the Evidence
Act .
supra)
(paragraph 5.1.4.1,
7.4.2.
Deletion of clause
Evi dence
Act. -
deletion
recommend
We
of
155
section
(4)
the
of clause (4) of
section 155 of the Evidence Act.
(paragraphs 5.2.2 and 5.2.3,
7.4.3.
proposed
Amendments recommended in
Evi dence
Act. -
we
recommend
supra)
section
53A,
that after section 53, the
following section be inserted:
"5 3A.
In
for
prosecution
a
an
offence under
section 376, 376A, 376B, 376C, 376D or 376E or for
any
a ttempt to commi t
question
of
where
the
consent is in issue, evidence of the
character of the victim
sexual
of fence,
such
relevant on the
any
wi th
experience
i SSU~
of
hi s/her
of
or
prev ious
person shall not be
SVCh
cons ent or
the
quality of consent."
(paragraph 5.3.8.1, supra)
7.4.4.
Insert i on
cl ause
in
section 146 of the
Evidence Act recommended.- In section 146 r.f the
Evidence
Act, the following clause shall be added after clause (3):
i
(
133
(
108
(
f
(
’ (4) In a prosecution for an offence under section
(
376, 376A, 376B, 376C, 3760 or 376E or for attempt
(
(
(
(
(
(
to commit any such offence,
of
where the question
<
{
consent
i
to adduce evidence or
to
put
(
cross-examinat i on
the
victim
is
in issue,
it shall not be permissible
questions
in
the
(
of
genera 1
immoral
character,
or
prev i ous
sexuai
experience
w i th
to his/her
as
to
as
h i s/her
any person for
prcvif^g such consent or the quality of consent."
(paragraph 5.3.6.2, supra)
We’ recommend accordingly and urge
(
i
(
(i
Government
the
to initiate steps to amend all the three Acts, namely, the
Indi an
Penal Code, the Code of Criminal Procedure and the
Indian Evidence Act on the lines suggested by us.
(MR.JUSTICE B.P. J
V
VAN REDDY)(RETD)
CHAIRMAN
(:
y-
■
(MS.JUSTICE LEILA SETH)(RETD)(DR.N.M. GHATATE)(DR.SUBHASH C.
MEMBER
Dated:
13.03.2000
MEMBER
MEMBER SECRE
'.ANNEXUBE-A
i
(
(
In The Supreme.Court pf India
Criminal Original Jurisdiction
:?c very icmv-sc
■ ■
Writ Petition (criminal) No. 33 of 1997
•
:
2(f)
T
.
(
I
In the matter of:
(
Sakshi
Petitioner
<
Versus
Union of India
Respondent
(
PART I: Precise Issues submitted for consideration of the Law
Commission and the Government of India
<
I. Given the widespread prevalence of child sexual abuse and bearing in
(
mind the provisions of the Criminal Law (Amendment) Act 1983 which
specifically inserted section 376 (2)(f) envisaging the offence of "rape” of a
<
girl child howsoever young below 12 years of age, whether the expression
(
sexual intercourse” as contained in section 375 of the Indian Penal Code
(
should
include all
forms
such
as
1
peniie/vaginal penetration, peniie/orai penetration, p^niie/anal penetration,
<
correspondingly
of penetration
finger/vagina and finger/anal penetration and object/vaginal penetration: and
whether the expression '’penetration” should not be so clarified in the
Explanation to section 37? of the Indian Penal Code. (Reference is invited to
Note =1 at Appendix "A” attached to this Pan*)
(
(
(
V-
US
<
c vzs®sg?
-
( v
Jr
.
*
\
"’Y
2. Whether a restrictive interpretation ofy penetration’’ in the Explanation to
section?375 (rape) defeats.thejyery.pinpose and intent of the provisions for
/ >
(
punishment for .rape u/s 376 2(f)‘^Whosoever commits rape on a woman
■
-
Z- -
-
-
when she is under twelve years of age" (Reference is invited to Note tr2 at
(' *
Appendix "A" attached to this Part)
(
3. Whether, penetrative abuse of a child below the age of 12 should no
longer be arbitrarily classified according to the ’type’ of penetration (ignoring
(
(
>
(
the ’impact’ on such child) either as an "unnatural offence" u/s 377 IPC for
penile/oral
penetration and penile/anal penetration) or otherwise as
"outraging the modesty of a woman" u/s 354 for finger penetration or
(
penetration with an inanimate object). (Reference is invited to Note ^3 (a) at
(
Appendix "A” attached to this Pan)
(
4. Wheiher non-consensual penetration of a child under the age of 12 should
(
continue to be considered as offenses u/s 377 (’’Unnatural Offenses") on par
with
(
certain
forms
of consensual penetration
(such as consensual
homosexual sex) where a consenting parry can held liable as an abettor or
otherwise. (Reference is invited to Note 3(b) at Appendix "A" attached
(
(
(
•.
(
hereto)
<
\36
(
<
<
■ X
;c
<
Appendix ’A’
Note #1:
(
<
Prior to 1983 the law of rape provided inter alia as under:
a. Under section 375 and 376 IPC, rape was defined as non-consensual
sexual .intercourse with a woman. The explanation to section 375 IPC
provides:
Penetration is sufficient to constitute the sexual intercourse necessary to the
offence of rape. "
nder section 376 1PC, the punishment for rape as aforesaid was for a term
which could extend to ten years or imprisonment for life and a fine.
Subsequent to the Criminal Law (Amendment) Act 1983. the law for the
first time provided that Whoever... commits rape on a woman when she
under t\vel\e years of age... shall be punished with rigorous
imprisonment for a terms which shall not be less than ten year but which
A'
may be for life and shall also be liable to a fine” (section 376(2X0- Not
content with section 3/5 which limited abuse to females under 16 years
U-C, the provision introduced in 1983 for the first time envisaged the
ohense of rape of a girl child howsoever voting below twelve years of
4
'f
(
(
! a^e- The possibility of penetration’ vagmally/anally/orally of a girl child
any body pan or object not necessarily penile cannot now be ruled
(
V
t
cl
(
(®
<
(
(
out. To do so would be to view the sexual abuse of minors in terms of an
(
I
adult yardstick rather than in terms of the child's experience of it. On the
(
contrary, since a girl child of even one year of age falls within the scope
I
of section 376(2)(f) the word "penetration" in the Explanation in section
{
375 cannot be restricted to penile/vaginal penetration
Note
(
2:
3 he petitioner draws support from the well established view that the vast
majority of criminal
child sexual abuse" does not necessarily involve
penile-vaginal penetration. A large body of research confirms that non-
peniie/vaginal sexual contact can cause lasting psychic damage. A restrictive
definition of sexual intercourse to penile/vaginal penetration therefore would
vastly undercount the number of children severely harmed bv this practice
(Reference is invited to pg. 22/23 and 108-112 of the paperbook)
Note #3 (a)
(
(
The Law Commission ot India in its 156th report has recommended that
child sexual abuse in the form of penile/ oral penetration and penilc/anal
penetration be covered ms 377 1PC while finger/penetration and penetration
/
of inanimate objects into the vagina or anus of a female child can be
adequately covered u/s o54 with a more severe punishment. The petitioner
submits that such a recommendation requires reconsideration. Arbitrary
/
classification ot penetration’ in the Explanation to section 375. not only fails
to take into account the perceived intent of the Criminal Law (Amendment)
Act of 1983 which specifically included section 376 (2X0 ’’rape of a woman
13^
(
(
(
(
when she is under 12 years of age”.but also fails consider the social context
reality of child sexual abuse .wherein sexual abuse of children is most often
by a person known to them (Reference is invited to pg. 22/23, 109-112 oi
4
the main paper book). It is submitted that under an existing contemporary
t
i
understanding rape has been understood in terms of its impact as an
intention to humiliate, violate and degrade a woman sexually and therefore
adversely affect the sexual integrity and autonomy of women and children.
While admitting that sexual abuse of children, particularly minor -irl
children by means other than penile/vaginal penetration is common and may
take the form of penile/anal penetration/penile/oral penetration, imger/anal
penetration, finger/vaginal penetration or object/vaginal penetration, the said
recommendation of the Law Commission defeats the ven* intent of the
amendment of section 3/6 IPC 2(f) (insened by the 1983 Amendment).
Such an arbitrary classification of penetration of a child of young years fails
to recognise the impact of sexual abuse on a child of tender years regardless
of which orifice is penetrated and how. It further assumes that a child under
t
the age of twelve, for instance who is 2 years old, would in each instance be
able to discern the degree of difference in terms of which of its oriticcb are
penetrated and how.
The petitioner wishes to cite the following instances to illustrate the present
impact of a narrow and restrictive interpretation of’penetration’ u s section
375 when applied to child sexual abuse:
i
(
C
(
w
(
<
(
■*
£■■.**•'■'* ’ ■ 'vV’’**’
•
not succeeded in penetration with her and hence inserted an iron rod in
her vagina which caused ^serious injunes to her, including a ruptured
(<
(
'
.
a. A six year old child was sexually molested. The 18 year old accused has
uterus and she had to be hospitalised for a month.
<
(
(
b. A five year old girl was raped by a youth from her neighbourhood. The
<
girl was made to lie down on her stomach and was raped from behind.
1 he girl suffered severe injunes. At the time of evidence in die court, the
<
•
girl, not knowing anything about the penis or genital organs of the male
and too.young to understand the difference between a penis and finder,
(
(
(
coupled with the tact that she w'as raped from behind admits a suggestion
(
m cross-examination that a finger was inserted.
(
(
(
c. O\e. a period of two tune, the father of a young female child who is now
(
six years of age repeatedly penetrates her vagina and anus with his finger
(
and asks the child to suck his perns.
( (
(
d. .An accused was charged under section 354 I PC for fondling the private
parts of die 1 year old baby girl. The argument advanced was that a 1
xear old baby cannot be said to possess a sense of modesty. Hence there
could be no question of outraging his/her modestv.
(
•• 1
(
<
is submitted that each of the aforesaid cases w'ould not be considered rape
(
a narrow and lestncrive meaning is given to "penerrarion" in the
Explanation to section 37? IPC. This would defeat the ven' purpose and
intent of specifically adding section 376(2)(f) to address die widespread
prevalence of child sexual abuse.
i.
a
:-r
(
7
V
(
Note ft 3(b)
Under the present recommendation of the Law Commission in its 156
(
ih
report, the examples cited above in Note 3 (a) would be understood as
follows:
■
(
(
Examples (a), pan of (c) and (d) would be seen as offences falling within
section 354 I PC ("outraging the niodestv of a woman" punishable with
imprisonment which may expend to two vears)
(
■
Examples (b) and the second pan of example (c) would be considered
(
offenses u/s 377 IPC (carnal intercourse against the order of nature.) In
<
other words, the nature of penetration and not the impact on a child oi
tender years would determine the seventv of the offense.
(
Further, certain types of penetration (penile/oral and penile/anai) of a child
would be tried as offenses on par with crimes of consensual sexual relations
ii'S 377 in which a consenting party may be held liable as an abenor (See
(
(
(
D.P. Minwalla v. Emperor Vol 36 (1935) Cr.LJ S77. .AIR 1935 SIND 78) or
otherwise bestiality (Khanu v. Emperor (1924) 19 SLR 327, a case of
penile/nostril penetration warn a bullock).
(
(
<
(
As stared by the Law Commission of India Report (No.42) of 1971 section
-7/ was created to punish certain kinds of ’moral turpitude’ as ’’Indian
(
society, by and large, disapproves of homosexuality and this disapproval is
strong enough to justify it being treated as a criminal offense even where
<
i
(
1^/
(
(
’C
kF adults indulge in it in private" (Reference is invited to page 15 of the main
(
(
8
(
paperbook).
(
(
<
(
In view of the above, the petitioner submits that the focus of section 377 is
to punish (he 'unnaturalness’ of certain kinds of sexual behaviour irrespective
(
(
(
of consent. It can not have been the intent of the legislature to club together
offenses of consensual intercourse and moral turpitude with those of non-
(
consensual sexual violence such as child sexual abuse, more so when the
I
latter has been specifically provided for in 1983 when it included a special
(
(
(
provision for sexual abuse of girls under the age of twelve under section
376(2)(f).
<
<
The 156l‘ Report unwittingly uegates any distinction between section 354
(
and 377 IPC which were intended to punish hurt and moral turpitude
(
respectively and sections 375/376 which were intended to punish sexual
(
violence.
(
In 1968 a similar ambiguity arose with respect to section 377 of the Indian
(
(
f
Penal Code which penalises ’’unnatural offenses” which are basically
I
consensual in nature. The section penalises ’’Whoever voluntarily has carnal
(
intercourse against the order of nature...” A single judge of the High Conn
ot Gujarat allowing for change in social conditions etc. since the passing of
(
(
(
the law construed the expression "carnal intercourse” as not just "sodomy”
(with which it was associated at the time of drafting the Penal Code) but also
as including oral intercourse (see AIR 1968 Guj 252)
(
<
I
(
<
(
.1
(
<
/4Z,
4^
I
9
i
*3^
1
It is well settled that in light of the rule in Heyden’s case, that the language
V<
permitting, as in the present case, a penal statute may also be construed to
avoid a lacuna and to suppress the mischief and advance the remedy. It -
(
follows that the substance and reality of section 376(2)(f) and not merely the
♦
<
form ought to be taken into consideration for appropriately construing
i
(
’’penetration” in the Explanation to section 375 read with section 376(2)(f)
(
(
(
(
i
<
(
<
e
(
<
r
!
(
(
{
<i
(
(
/A3
io
X
(
PART [I: Existing inadequacies
(
<
/f
(
(
Because of existing inadequacies in tlie system, the questions have' been
(
posed with suggested answers at Appendix ’B’ to this Pan. The instances
<
t
cued at Appendix 'B' of this Part show that even though each incident related
therein may cause severe and untold psychological trauma for the girl child,
under the existing provisions of the Indian Penal Code, it becomes difficult
to identify the precise offense. In each of the cases cued in the Appendix,
while it may not amount to rape u/s 375/376 IPC, it would also not amount
to an "unnatural offense" u/s 377 or to "outraging the modesty of a woman"
IPC but might jus. be a limited form ot assault or criminal force, if at
all. Such offenses cannot possibly come within the confines of a panicuiar
i
oftense under the IPC namely given the limited parameters of the existing
i
iaw. Jt is imperative therefore that there be a re-thmkmg on this issue and
that an offense of "sexual assault" should be more precisely defined and its
parameters indicated. An attempt has been made in this regard below.
«
I
3
<
I
I
ft
(
i
v(
t
V,
<-
<
(
;(
A(
(
£
■
APPENDIX ’B’: The following question are posed and suggested answers
furnished.
1. A three year old child has been ejaculated on but in no way penetrated by
a neighbour. How do we categorise this offense?
t
(
Ans: At most the offense might be categorised as an offence u/s 509 IPC
(
"Whoever, intending to insult the modesty of any woman.... intrudes
upon the privacy of such woman... shall be punished with simple
imprisonment for a term which mav extend to one year...."
2. The elderly neighbour person, daily calls (he small male child of 5 years
m his house, exposes his geniials to him and asks him to do (he same.
What otiense. if an\\ has he committed?
Ans: As there is no provision under the Indian Penal Code for sexual
abuse of a male child, the offence may. if at all. fall within the meaning
ot "Criminal Force” u/s 349/350 for which punishment "may extend to
duree months" provided there has not been any "grave and sudden
provocation" on the pan of the child.
(
3. The accused was charged ws 354 IPC for fondling the private pans of the
1 year old baby girl. The argument advanced was that .a 1 year old bay
It
cannot be said to possess any sense of modesty. Hence there -iStrl be no
question ot omrag’.ng his/her modestv.
I
(
I
<
(
I
(
I
Cr
(
’12
<
(
(
(
(
<
(
<
(
4. The uncle of a 5 year old male child frequently undresses him, touches
e
his genitals and asks die child to do the same. Categonse this offense.
(
Ajis. This offense is limited to the same extent as example #2. At most
this situation might be punished as Criminal Force u/s 349/350 and 352
1PC.
<
(
5. Over a period of time, when no one is at home, a six year old girl is
lovingly asked by her father to masturbate him. What would you call this
offense, if any?
(
(
Ans: There is no offense under the existing Indian Pena! Code
(
6. The uncle of an 11 year old invites her oxer to his house, offers her
(
«
(
expensive gifts and asks her to undress so that he can photographs her in
different poses. How would you categorise this offence9
I
‘
(
Ans.: There is no provision in the Indian Penal Code which would
(
describe this practise as an offence.
(
(
‘
(
{
(
<
(
I
k:
{
13
(
PART III: Suggestions for amendment to the Indian Penal Code
The petitioner suggests the following amendment to the offense of "rape , m
(
(
(
the Indian Penal Code to cover the broad experiences of "sexual assault.
1. Delete existing sections 354/375/376 and 509 of the IPC and add the
<
4
r
following:
i
t
(
2. Proposed definition of "Sexual Assault"
"375. Sexual Assault
<
1. A person commits sexual assault against another where such person
engages in any of the activities set out in subsection 2(a) to 2(c) against
4
(
the will or without the consent oi the other person against whom
(
offence is commined.
Provided that where such sexual assault is committed against a minor, the
question of consent is irrelevant.
i
(
(
EXPLANATION : A minor is a person who is
(*
years of age or under.
1 Reference is inviied to die
of Wszm Australia and Canada
the offence of
eliminated and an offence of -sexual assaulf has evolved. Further reference is mvrted to the dran Sc.
Assault Against Women and Children' legislation prepared by a Subcommittee of the National
Commission for Women, 1992.
(
(
44
Reference is also inviied to the foUo^mg assessment of -sexual assault' law reform in Canada.
.
U
‘V
■t
Confronting Sexual .Assault- A Decade of LetgJ and Social Change Edncd by Julian v.
Rcnmc M. Mohr. 1994 (Provides inter alia, a comprehension analysis of the redefimuon ot rape
.
"sexual assault" and its impact on child sexual abuse cases)
"the New Sexual Assault La.: What Has Been Its
by K. Edward Renner and
Canadian Journal of CnminoloEv. pp 407-413 (prosides statistical support for increased repc x.
•
under a new law of sexual assault as opposed to an earlier law ot rape)
p .
"Inconsistencies and Contradictions m Canada's Sexual .Assault La." by R. Hinch. C i------- —
(
{
(
XIV no.3 September. 1988 (pp. 282-294)
(
v’C
I
1^?
(
(
"i
14
(
(
(
3. ’’Sexual Assault” includes
<
a) The introduction (to any extent) by a man of his penis, into the vagina ,
<
the external genitalia, anus or mouth of another person
b) The introduction (to any extent) by a person of any object or a pan of the
body (other than the penis) into the vagina or anus of another person.
c) Where any person, for a sexual purpose, touches, directly or indirectly,
with a part of the body or with an object, any pan of the body of another
person.
d) Where any person for a sexual purpose, invites, counsels or incites a
minor person to touch, directly or indirectly , with a pan of the body or
with an object, the body of any person including the body of the person
who so invites counsels or incites and the body of the person invited,
counseled or incited.
e) Where any person with a sexual purpose utters any word, makes any
sound or gesture, or exhibits any object or part of the body intending that
such word or sound shall be heard, or that such gesture or exhibition shall
be seen by a person or intrudes upon the privacy of such a person.
4. ( a) For the purposes of section 3 5 (!) ’’ccnsenf means (he unequivocal
voluntary* agreement of the woman to engage in the sexual acnxiry m
question.
(b) No consent is obtained for the purpose of section 375 (1):
}). When the consent has been obtained by putting the woman or
v am.
person whom the woman is interested in fear of death or of imuiy .
I
<
■
1:
(
:
,
f '
( X
’
ii) . When such consent is given because the woman believes or is given
(
to believe that the man is her husband.
iii) . When at the time of giving such consent, by reason of unsoundness
(
(
of mind or intoxication or because of the administration by him
(
personally or through another of any stupefying substance, the woman is
(
unable to understand the nature and consequences of the act.
(
iv) When the agreement is expressed by the words or conduct of a person
(
other than the woman.
v) The woman is mistaken about the identity of the man.
vi)
The woman is mistaken about the sexual nature of the act or
mistakenly believe that the sexual activity is for medical, ritualistic
punficatory, therapeutic, psychological or spiritual purpose.
vii) The person is or appears to be a minor ’
*
(3)" 375 A. Aggravated sexual assault
A person commits an aggravated form of sexual assault w'hen1
<
t
1(a)
Such person being a police man./ woman commits sexual assault
on a women or minor;
<
i
ii)
i ) Vtithin the limits of a police precinct.
in his or her custody or in the custody of a police person subordinate
to him or her; or
iii)
in his or her custody or in the custody of a police person
subordinate to him or her: or
iv) while such person is in uniform
(
(
I
(
1^
16
(
(
(
{
b) Being a personnel in the armed forces commits sexual assault on a
person while on duty.
c) Being a public servant, commits sexual assault on a person in his
(
custody or in the custody of a public servant subordinate to him.
d) 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
t
in force or of a woman’s or children’s institution commiis sexual assault
on any inmate of such jail, remand home or institution; or
(
(
e) Being on the management or on the staff of a hospital commits sexual
assault on a person in that hospital .
(
f) . Being in a position of trust, authority , guardianship or of economic or
(
social dominance commits sexual assault on a person under such trust.
(
authoritv'or dominance.
t
(.
(2)(a)
Such person commiis a sexual assault on a women who is
pregnant.
(
(b) Such person commits a sexual assault
on a woman who is
suffering from mental or physical disability.
(c)
(
Suc.h person commits sexual assault on
mmoi.
(3) While comminmg a sexual assault causes grievous bodily harm,
maims, disfigures or endangers die life of a women or minor.
(
(
(
(
i
(4) Such person commiis or has committed protracted sexual assault on a
women or mmor
( \
/
(1
'i/
17
(5) Where more than one person commits sexual assault on a women or
minor.
t
’<
EXPLANATION
1: Where a person is sexually assaulted by one or
more in a group of persons acting in furtherance of their common
t
intention, each of the persons shall be deemed to have committed sexual
assault within the meaning of this sub-section.
*
i
EXPLANATION
?•
"Women's or children's institutions " means
an institution, whether, called an orphanage or a home for neglected
women or children or widow or by any other name. which is established
and maintained for the reception and care ot women or children.
EXPLANATION 3: "Hospital" means the precincts of the hospital ano
includes the precincts or any institution for the reception and treatment 0;
person durinu convalescence or of persons requiring medical attention or
rehabilitation.
New Delhi
Dated:
■t.-
-
■
For ihe Petitioner
i
151
( \
-'-..■y'i"-:".
/0
V-ft
<
IN THE SUPREME COURT OP INDIA
CRIMINAL ORIGINAL JURISDICTION
(
1
{
WRIT PETITION
<
33 OF 1997
(CRIMINAL) NO.
(
(
(
IN THE HATTER OF.
t
...PETITIONER
(
(
SAKSHI
(
Versus
(
(
...respondent
UNION OF
INDIA
affidavit
67 .
S aksh i .
Co-ordinator.
(
and state as under«Delhi do hereby solemnly affirm
(
organization
and
circumstances
of
(
(
of
the
with
the
Co-ordinator
Project
an
conversant
fully
New
1 < ’
South Extension Part
(
1 .
Project
aged 30 years,
w / o Shri Sunil Kunar,
E e ui lata.
Dr.
I.
Petitioner
and
f acts
to
the present case and competent
affirm
this affidavit.
i.
(
(
that
state
2.
contents accompanying
(
that
the
and
texts
over
I have read
and
available
organization and
and state
Written Submissions/ Issues
have keen prepared on the basis
sane
in
office
the
advise obtained
of
the
understood
the
records
of
Petitioner
from legal counselors.
(
deponent
1
VERIFICATION:
(
the deponent do hereby verify that the contents
this
affidavit
are
true and c c r r e c c to
(
knowledge.
It
conceals
nothing and n c
false.
Verified a t New D 1 r. 1
cthis
the
L -1 c t>
(J8297
3rd day
the
part
best
ot
cf
the re o f
is
'
I.
ANNEXURE-B
<
375.
Sexual Assault:
(a)
penetrating the v a g 1 r. a (w n 1 c h t e ?■ m s h a 11
Sexual assault means
<
(
<
the
<
1 abi a
ffsajo ra},
the
nc 1 use
anus or urethra of a»‘«y
person with
(
(
any part qt
too’y o^ a‘‘'Ot'‘’er person
<
r
a’'« object man 1p ’•atea by
except
where
ano •_ '’’C ’*
Pe n e t »• a 11 •:> »• 1 s •: a r r i e •J o t ■
person
•' p <’op e •'
hygienic or medica’ purposes;
• o?
man ipu'i at ing
part
the
bO d v r. S
<? t
Cr
persor. so as to cause penetration cf
< w h i <-H
to rsha 1
i n«s; .jpe the
• ab i a ‘■••a Jor a} t
anus or the urethra O'“ the c^fende
C»f tr»e Other
pe» SCin
s
by
t ••e
pa--t
OOd v '
introducl
any part of the
(d)
er.g^oir.g -J
cunpi1ingus or fellatio; pr
\ a;
cont 1 r.ij 1 f-.c
assault as derived
peni s
a
perse r.
V.
\a «
tO
’'dj
a bo v e
1 r. c i r< i.mv.s ~ ar.ros fa 1
• <• i«_«w i no C'See r *• pt" ons:
c -acses
15^
nt
153
Against the other person’s will.
Secondly- Without the other person’s consent.
with
Thirdlv-
by
such consent*has been
any
person
pe rson
horn
in
••< ’tr- ’ - *
consent
or he?'
the
putting
Other'
^•JCh
person is
such
in ^ea*' of deati* o< hu r t.
•
.
r 1< tT
•- - r
i tli
•“••an
to
<_l
f 1
f c. ri,
person
-
L-r 1 *T
r
wh^-M the ‘'••a**. *ncws that
f
».i s C‘ a!’* d
A- •-
oti’er person.
o *'
w?*!<ju<
she
fth!v-
the
who?** j
he’-
a?*«d
is
horse! “
with the cr„-.sent
Lifce
O7‘ gi
■; r<G
be
•a-r
Othe*'
ce
to
s •_-• c h c o n s e r* t.
•.• ri s ou ndne s s o " •'•■ i r?c o?“ i n t o«:' c ac i on <:• r the au•?■• i n i s t •* a i o • ■•
through
by the ofender persona* *y
•_• • ■»r.r. jOSCine s•j os *_ a? • c e } che oche?' person
stupefying
•jna.u • e
CO.
r» •. <* r'i
r>r er stand
S •?C ?"•
<? t her'
Si xth;v-
consent,
age .
another
her*
the
■j r e
perso<* gi
’ i th
S'.»rh orher
w
pe
»*• -j c o »'• s e •j a e c e s o •
cor.ser.r.,
th out
the
is ‘.•nee*’
p e r s C’
s
-
C.
*
^^rM^xolenatlont ■ ■ sexual
1 *
“ 3
*v '
J
by a man with his own
intercourse
wife, the wife not being under fifteen years of
>
is
age,
i
not sexual assault.
i
<
<
376 .
Pun'i sn^ent for
except
in
sexual
(
cooifiri ts
<
i f?'p»' ■' sonrrter' •_
<
not be less
1
a.
v.
cases
the
pun "J shed
be
shal 1
!
■: ch
L
vvr't “i C O ’ "C! v
w h *• < n r.i a v e ’
e d tc»
'_e»ye a r* s
/
a»''d shal I a
be liable to fine unless the person subjected
a.ssaul •_
At
I
f or by sub- sect "• on •* 2};
provided
assault
Whoever,
assault
se> a *
age,
unde ?■
hicn
in
case.
shal 1
he
<
* ■' • te
be
punished
irnpr i sonroent of e •’ rher desc <* i pt io»*? f o< a tern!
extend to lwc» vears
which
fine Of* with both
*
■v ■; tn
(
r«*ay
i
:
At
by the
pun i Sf'ied
Provided
that i ~ th»e sexual as s au 11 i s ccmvo*! * cted
fat he r,
□•“andfather'
wi th
r Gorous
or
b^“Othe<* ,
he
shal i
t
be
i
a terni w^ich
■hT«pr i sonn?ent
shall not be less cher* ten years but which inay exte»“‘J
tc*
1 i fe i n?pr i sonmer«t.
i
i
Provided fivcher cnac the court 'ncty,
It
and
speci ai
reasons
to
be
rue t i
ed
i r« t he J •.* d □ ’' e f’ c,
impose a sentence of i«Hp»’isegment ro?* a term of less
>2?
T
w?»oe ve»‘, -
<
the/*’
<
&
<4^E!
IS’S
• - 4
I■ x-;. ■ ■;..
(a)
being
police
a
sexual
commits
officer
assault-
(
(
c
K
C
s
the
(1 •
‘■•fnits of the police station to
which he is appoineed;
C
’• (
(
•w ?»•=• t h r
■« n tne pner??"! ses of arjy station nous
(
or not s i c ‘j ate d i
t h a p o ’• ‘J c a
stat ion
a
in
(
('
’
to
wh i ch
he
’• s
appoineed;
I
(
(
v
person
f- i s
custody
C U S t O d y r. f 5 p 01 ’’ c a O V f '• <: a r S U b Od i «"i a t a to h i n •;
be ■’ n9
(O)
a
h. i s o •" f i C i a 1 pos *• ~
person
public servant, takes advantage O'“
a?'id <:oror!’i t s
sexual
O
as So*.* • •_
cus tody as sucn pub1ic se rvan t
in rhe
custony r»f a public se»'var«t subordinate to hira;
(c) being on the management or on the staff of
Il
* 1
Jai 1 ,
remand
a
home or other place of custody established
by o< under any • a»* for the time being in force
w0**!e
a
or chi ’ dren’s insti t«jt ior? takes advantage of
o f f i c i a 1 pos i t ■ o<'
iornate
and
con'mi ts
sexua1
assault
on
’• s
any
such Jail, remand home, P1 a c e o n i n s t i t u t i o n;
•u•
hospital, takes advantage
O’’«
tf-e
staff
official
commics sexual assault on a pe'-son in that hospital;
a^d
O*'
■
I
5
‘■<1
f
(4) comnn’t-s sexual assault- on a woman knowing her
to be pregnant;
' <
{f) c omm •’ ts s ex u a 1 assault on a person when
(
Person is under 71•teen years of a^e;
4 <
t
(
{g'• comQii._.s gang sexual
assa*.^ t
1 (
" f
shal •
t-e
p<jm
xhA.j
wr’ich sha« ’•
• ess than te*‘* years but ^nich
1
<>
w tr gr.fhj s i mp •' i s onmen t f o r a t e <
ma>
be
“or life and sha.’'< also be liable to fine :
(
(
(
<
<
p.-r.v iped
that
the
cou«*t
"•ay, f o r a q e q u ate a r. n
(
special '‘eason s ■- •? de r!«et *• one•j *• •■• t he J udgme'‘»c t impose a
(
v
sentence of impr i sonment or e *< the
(
‘-•f
description for a ter«"
iess tr«an ten years.
(
(
(
f
Ex pl a«'»at or.
•
'^here
assault- by one
il
iv
a
person is s »j oJ e c t e d to s e xa 1
more i <•. a group of
furtr
com«v.on
pe r sc*'' s s <*• a i ’•
be osemeu to
Ji e v e
persor*s
i riT.erit i O»*» J
acting
in
COi teed
g arg
sexua•
C
assault within the mean i no of this sub-sect io..-,.
-
C
Expl an^r ir.r.
2. -
* s .jr c« > * dreri ’ <
I
an institut ion,
Other •‘•ame *
i «"«st i t ut ior; '* means
I
^'tetr.Crr called an O’*r>r*A.<-.^ge
•‘•eg let tec
•I
(
v
each
<
(/
***
•'< sstacu •;
reception ar.d care of
A.-.o .-..a
a r-c-me ^or
9 »•
o-.ed
*" r"
(!
< t
C"'"e»’i r»r
j 1 p r* er*' .
( t
6
(S'?
$
”Hosp i ta 1 **
3. -
Explanation
the precincts of the
means
hospital and includes the precincts
reception
the
for
and
i nsti tut
any
du r i "*9
persons
treatment
(
(
1
( ( '
(
(
convalescence •?< of persor«s reqt? i r ir«g
attent'-r .-*»
medical
o r r e h a b i 1 • t a t i o n.
1
(
<
v
(
Zi'1 te '■ c'?’? »■ se
* '• *2’ e v e *'
so pa rar o<->. -
t
(
a
my
! '• v *» «‘iQ
has
cC'f*!ser't,
be
(
descr1 pt1
(
s.nal 1
i »■' te r c O'.« < se
sexua•
Cif-F
separation or under any
(
''■■a*'
r
i v'
i'i 1 Gt
custom
■•Ce »*
usage,
wi thout
pun i sneo w i t h i mpi sonment of
j C'!* a term
h i c»«
a y e < t e n d t o c w o v e a »■ s
a1 so be liable to fTne.
(
•3768«
Sex.jAi
^-■cercour-se
o<jbi'»c servant w~«L.h oe,~
<
in njs custody.- whoever, being a public
<
adv n'■•cage
of
his/her
of fic i a1
pos i tiori and i nduces c-<■
s e d u. c e s a n y pa <■ e r»n, who is in his custody as such
(
v
A
k
A
PUD•'C
servant or in the custody of a public servant subordinate
(
I
ta-es
servant,
h i m;
to
r«a v e
sexual
1 <■• ter cou r se
er ,
i th h
sexua • i ntercou<se not amour’t • r«g to the offe<«ce or se*i
assauit; shal 1 be punished with
inipr isonmenc
of
e i the*-
descr iption fo<' a term which <v.e.y extend to five years a d
(
also be liable to fire..
A
t
i a«-«acio<'» :
sec t iO’-is
’"•e ’’ t i C’ n e d i n c 1 a uses (a) t c«
I
1
s
•■'•ea’’
•el of section 77 5 .
t he a
-(cl
<0
.
< -376C
Sexual
(
intercourse
by
(
(
superintendent
(
remand hon^e, etc.- whoever, being the
<j f a J ail, remand home or other place of custody
(
<
force
of
a
1 <
the
t i roe
and
pcs it ion
s e c> c e s
ar«y
i ‘"i s r. i t. u t. -j
t
s e *a i
of such Jail,
remand home, place or
to have sexual i n t e r q ou r s e w i t hi hi i m/ h e r , such
• '■■tefco..;,-se •••■:■£ anwuntioo to the orfence of
shal 1 be p«jr? i s hed
deScript fc
ShAl 1
in
-j r.n
•_ ern« wh
t
(
(
i nduces
<
<
be i ng
-omen’s or children’s institution takes
advantage of his/her official
'■
(
(
establishes by or under any law for
(
i
superintendent
(
manager
of jail ,
sexual
“• mp r "• s C' n me n t
(
4
<
(
roay exter.p to f i ve years and
c.1 S'-* be 1 *• ao • e co f i n^-
<
(
(
c?«a?'«<•. c on
‘’Super intendent”
in relation to a Ja’’,
4
reoiarid horoe or ocr<er place c»f custodv
t
chi 1dren’s
other
institut ion
o ff i ce
Institut ion
in
by
such
v i rtue
i r»c 1 udes
J ail,
of
a
a
person
remand
can
place
exercise an*
<
(
(
!•..* o»‘ control over its inmates.
i
<
■gMpiana.tior. 2 . - tne
i tHf;
r
<
holding a-’y
home,
he
-h i Ch
-oo'en ’ s
<
express i on
• 'S-ve
women’s
the
same
or
meaning
(
cxp-Jaoatioo > to s.-b-sectioo (2? of sec-tior, 375.
(
<
<
Se < -j a 1
ma-*«e g ec'je r t
* * ■ • e ** ■” c*ur~
OV
a »*• v
A^e^ter
(
_l_of a hpe^jj-a;
w O‘*' 'S ''i
<
—tt-ite-;
Whoeve--,
beir.g or. the sca^r of a hospital
nag-meor of e hosp-J
takes
ad v anvage
(
J
i
1
]
f
cccc.
his/her ^position and has sexual
V (
<
to
’
intercourse with any{’«-
sexual
term
may
wh i ch
(
p 1 ana »-• i o,~i. _
as
rivtr
a
description
to five years and shall also be
extend
• f?e express <on “hospi ta1”
me ar? ‘•ng
same
intercourse
sexual assault, shall be
of
puni shed wth impr isonment of ei ther
liable to fine.
(
such
offence
the
<
f
' (
■
hospital,
person in that
amounting
'
■
■
have
S’?a • •
the
in Expi a'• atior. 3 to s«jb-sett *• or? \ 2 }
section 376.
4
(
Uni a^»r
t
( I ) "hoeve*’ j
tact
sexual
sex ua’*
w-; rh
(
i
1
i l
touches
ntent,
the body or w’' t
perse”’’;
another
w ’• tn
pun ished
(
of
body
part
the
spouse of S’.'Ch pe?'sC”'s;
be-^g
s '• ?mp i e
the
any
other
such
pe-’son.
stai ■’
be
i mpr i soomet fo•' c. te <*m w»? “• cn ‘■••ay
ith fine or
W i th
both .
the other person is a person below fifteen years
age,
SMCh
conduct,
shal i
other
6
•'Ot
extend to three years or
however,
/<
an c»ujec •- ;
«: on sent
without the
ind i recc ’< y f wi th a pa.’’ •_ cn
di rect ’• y
impri sonment
IM
w i th
or without consent o< the
be
pun ■•s neo
w i th
n i c h ma y e x t e '*? d to s e v a >« y e a •* s c*,_
Of with both.
ith sexual
\2}
6
( v
I .
a
any person,
C<?U''>SC'S
O’’
t
Cl
- i th
r •< tent;
- • t}‘-
including the
bod v
a
pe ’‘sco
s •?
c
c
9
“
C
l;r
1 '<
1 nvi tes, : counse 1 s
or
t»€? punished with
shal 1
incites,
or
rigorous imprisonment which may extend to sever* years
with fine or with both.
<
<
<
(
<
< <
t <
Whoever being in e position of trust or authori'-y
( 3}
towards a young person or is a person with whoff* the young
d e pe nd e <"• c y ■, to uc h e s,
relat ionsh-ip
person
in
d i r e C-1 '• y
indirectIv,
a
(
(
(
t hs-
t
4
S'JC r'.
ith
h C’d y
v r«
»’«o
i '■•<pr i son««’ent
per s or-,
ith sexua' intent,
cbjec.r,
she.'J I
be
vm-
tn
a
part
part of the body o*"
t
r i QOrOU S
(
Punished
vm i th
years or ^ith fine
whici-i rr.Ay
<
i th both :
Prov ided
•"ather,
that
■j r tne O' te'^oer napper«s
brother,
gr^rid f at her
igorovs iroprisono'ent for a term
1
~ f-<o
hs shai "• be pUri’ShO'J
tn
not be
• ess
ni<h sha.’ii
K
(
“han
t' i v e
years
but
nirh ma.'' extend to a term o’ ten
years.
(
c <0 e.f'.at i nr.:
"Voung
•2 •
person
sub-section
th i S
means a person pe'-o
and
<
the age o-" fifte
(
I.
•o be deleted.
I
nt e«'ded
!
insult- the modesty Qf a won.Q.n :
i
1
(
<<
If
161
"
• few
Whoever,
C
(
Intending
to
annoy
or
to insult the
nK»desty of any wofoan, utters any word, makes any sound or
gesture, or exhibits any object intending that such
shaJ • be heard.
sound
(
( .
z <
(
that such gesture or object
by
SUCh
worr.Ar, .
or
such
wofnan;
shal i
be puni shed ~ith sifHple
shal 1 be seer..
I
privacy
v
i «Hp r *• son?T'ent rc»' a te rr?? IV
Of
SvG rd
intrudes
upon
the
a v e x t e d to t '*• ree
(
1
»"i«2’w’O v o *" .
(
sexual
(
r- go revs
(
tn a n two years but
(
•-th fine.
(
(
(
<
(X
(
(
c
(
(.
(
(
i ntent,
i f'-'p r• i SOO'V.er.t
sue r.
pe r son
f O<■
of fe<’«c-e is <unfitted
shal I
pun “• shed
term which S' S • 1
ch o*ay e*terid
^ibh both,
be
to
f i ve
nr.r. be
vears,
’’ th
i th
iOSS
c-±.
(
annexure-c
«(
(
(
KEY TO READING THIS DOCUMENT
i t
The proposal given by The National Commission for Women is written in BL ACK,
it has been followed by (he corrosponding propcual of the Law Comraisdon.
Ttie Law Commission’s proposal has been written in BLUE.
CommenU/observations with regard to the compariaon between the two have been
written in RED.
i<
i
It
COMPARISON - RAPE LAWS
Section 375 - Sexual Assaults
1
1
A person commits sexual assault against another where such person engages in
any of the activities set out in subsection 2 (a) to 2 (c) against the will or without
the consent of the other person against whom such offence is committed,
COMMENT - The underlined portion has been reproduced in S. 375 First and
Secondly of the Law Commission’s proposal.
(
i
Provided that where such sexual assault is committed against a minor, the
question of consent is irrelevant.
<
EXPLANATION 1- A minor is a person who is 18 years of age or under.
COMMENT - A minor is taken to be a person who is under the age of 15 years for
all purposes in the Law Commission’s proposal.
EXPLANATION 2 - Any consensual sexual activity between two adults does not fall
within the purview of this section.
COMMENT - Not mentioned in the Law Commission’s proposal.
2
(
(
(
(
"Sexual Assault" includes:
i
(a)
Toe introduction ( to any extent ) by a man of his penis, into the vagina,
the external genitalia, anus or mouth of another person.
(b)
The introduction ( to any extent ) by a person of an object or a part of the
body ( other than the penis ) into the vagina or anus of another person.
(
Section 375 - Sexual Assault:
Sexual Assault means -
(a)
penetrating the vagina ( which ter m shall include the labia majora ),
(he anus or urethra of any person with —
(0
any part of the body of another person or
l
{
- z<
{
o
(ii)
<
an object manipulated by another person except where such
penetration is carried out for proper medical and hygienic
purposes;
<
(
(b)
I
person’s body;
(
<
manipulating anv part of the body of another person so as to cause
penetration of the vagina ( which term shall also include the labia
majora), the anus or the urethra of the offender by any part of an;
(c)
introducing any part of the penis of a perso n into the mouth of
another person;
(d)
engaging in cunnilingus or fellatio; or
(e)
continuing sexual assault as defined in clauses (a) to (d) above.)
I
(
(
(
(
COMMENT - The word ‘external genitalia’ has been deleted and the term
‘urethra’ has been inserted. Also, ‘vagina’ has been gtven to ‘nclude
the ‘labia majora’. Besides this, the word ‘penetrating’ has been, used
instead of the phrase ‘introduction (to any extent)’. S375 (b) and (d)
have been inserted to cover those acts of sexual assault.
(c)
(
person.
(
(
(
<
(
<
S. 376 E - ‘Unlawful Sexual Contact’
Whoever, for a sexual intent touches, directly or indirectly, with a
(1)
part of the bodv or with an object, a part of the body of another
person, not being the spouse of such other person, without the consent
of such other person, shall be punished be punished with simple
imprisonment of a term which may extent to 3 years or with fine or
with both. If, however, the other person is below 15 years of age, sue.,
conduct, with or without the consent of the other person, shall be
punished with rigorous imprisonment which may extend to 7 years or
(
(
<
Where any person, for a sexual purpose touches, directly' or indirectly,
of the body of another
with a part of the body or with any object, an;iy part
.
with both.
COMMENT - The word ’intent* has been used instead of the word ’purpose*. The
extent of the maximum punishment has been brought down to 3
years from 5 years. A minimum punishment has not been prescribed.
<
(d)
(
<
Where any person with a sexual purpose utters any word, makes any
sound or gesture, or exhibits any object or part of the body, intending that
such word or sound shall be heard or that such gesture or exhibition shall
be seen by a person or intrudes upon the privacy of such person
(
(
(
- 3 ■
i
(
<
<
S. 509 - Word, gesture or act intended to annoy or to insult the
modesty of a woman:
Whoever, intending to annoy or to insult the modesty of any
woman, utters any word makes any sopnd or gesture, or exhibits any
object or part of the body, intending that such word or sound shall be
heard or that such gesture or exhibition shall be seen by such woman,
or intrudes upon the privacy of such w oman, shall be punished with
simple imprisonment for a term which may extend to three years, or
w ith fine or w ith both.
Where, however, such offence is committed with sexual intent,
such person shall be punished with rigorous imprisonment fora term
w hich shall not be less than two years but may extend to five years or
with fine or with both.
i
(
(
<
(
I
<
<
COMMENT — The new proposal has been divided into two parts:
(e)
(
(2)
a)
where gesture or remark is intended to annoy or insult the
modesty of a woman, and
b)
where it is committed with a sexual intent.
Different punishments have been prescribed for the two offences.
(
Where any person for a sexual purpose invites, counsels or incites a minor
to touch, directly or indirectly, with any part of the body or with any
object, the body of any person, including the body of the person who so
invites, counsels or incites and the body of the person invited, counselled
or incited
k
S. 376E - Unlawful Sexual Contact
Whoever, for a sexual intent invites, counsels or incites a young
person to touch, directly or indirectly, with a part of the body or with
an object, the body of any pei'son, including the body of the person
who so invites, counsels or incites shall be punished with rigorous
(
l
Comment •
Commission.
(3)
W'hoever, being in a position of trust and authority tow ards a young
person or is a person with whom the young person is in a relationship
of dependency, touches, directly or indirectly, with a sexual intent,
with a part of the body or with an object, any part of the body of such
young person, shall be punished with rigorous imprisonment which
may extend to seven years or with fine or with both.
Provided that if the offender happens to be the father,
grandfather or brother, he shall be punished with rigorous
imprisonment for a term which shall not be less than 5 years but
w hich may extend to a term of ten years.
<
I
t
165
(
(
(
t
(
<
i
«'
f
(
Explanation — “Young Person” in this subsection and in subsection (2) means
a person below' (he age of 15 years.
COMMENT — Sub-section (3) has been added by the Law Commission.
(
For the purposes of S. 375(1) “Consent” means unequivocal voluntary
agreement of-the-woman.toCOMMENT - ‘Consent’ has not been defined in the Law Commission’s proposal.
(a)
(
(
(b)
No consent is obtained for the purpose of S. 375 (1) :
(•)
when the consent has been obtained by putting the woman or any other
person whom the woman is interested, in fear of death or injury.
8 375 Thirdly - with the other person’s consent, when such consent
has been obtained by putting such other person or any other person in
w hom such person is interested, in fear of death or hurt.
i
(
COMMENT - The word ‘woman’ has been replaced by (he phrase ‘o(her person’
and (he word ‘injury’ by the word ‘hurt’.
(
(
(n)
(
(
(
When such consent is given because the woman believes or is given to
believe that the man is her husband
S. 375 Fourthly - Where (he other person is a female, with her
consent, when (he man knows (hat he is not the husband of such other
person and that her consent is given because she believes that the
ofTender is another man to whom she is or believes herself to be
legally married.
(
COMMENT — Too confusing.
(
(iii^
(
(
(
(
(
(
<
<
<
When at the time of giving such consent, by reason of unsoundness of
mind ur intoxication or because of the administration by him personally or
through aiiother, of any stupefying substance, the woman is unable to
understand the nature and consequence of the act.
8. 375 Fifthly - With (he consent of (he other person, when at the
time of giving such consent, by reason of unsoundness of mind or
intoxication or the administration by the ofTender personally or
through another, of any stupefying or unwholesome substance, (he
other person is unable to understand the nature and consequence of
(hat which such other person gives consent.
COMM LN I - The word ‘woman’ has been replaced by (he phrase ‘other person’
and the term ‘unwholesome’ has been added.
<
(
- s-
(
<
(
(
(
(iv)
(
When the agreement is expressed by words or conduct of a person other
than the woman
t
(v)
The woman is mistaken about the identity of the man.
(
(Vi)
The woman is mistaken about the sexual nature of the act or mistakenly
believes that the sexual activity is for medical, ritualistic, purificatory,
therapeutic, psychological or spiritual purposes.
<
t
(vii)
/
•
*>■
The person is or appears to be a minor.
COMMENT - Cl. (iv) to (vii) have not been taken into consideration. However, the
following clause has been added.
(
(
S. 375 Sixthly : “ with or without the other person’s consent, when such other
person is under fifteen years of age”.
Explanation to S. 375 says - “ Sexual intercourse by a man with his own wife
not being under fifteen years of age is, not sexual assault”.
(
(
(
S_ 375A - Aggravated Sexual Assault.
A person commits an aggravated form of sexual assault when.
<
S.376- Punishment for Sexual Assault
1(a)
<
2(a)
<
(i)
(0
(ii)
(ii)
(iii)
(iii)
<
such person being a police man/ woman sexually assaults a woman or
minor,
Whoever, being a police officer commits sexual assault -
c
(
within the limits of the police precinct
within the limits of the police station to which he is appointed; or
the premises of any station house whether or not situated in the
police station to which he is appointed; or
in his or her custody or in the custody of a police person subordinate to
him or her; or
on a person in his custody or in the custody of a police otficer
subordinate to him; or
(
(
(
while such person is in uniform
COMMENT- While a new cl. (ii) has been introduced, cl. (iii) of tbc N.C.V's
proposal bas not been considered.
(b)
(
being a personnel in the Armed Forces commits sexual assault on a
person while on duty.
COMMENT- Not mentioned in the I^w Commission's oronosal.
(
(
(
4
( •
J 67
<
(
(
(
(
(
(c)
4
<
(b)
4
t
COMMENT - The underlined portion is the only change/addition in this subsection.
(d)
<
f
(c)
i
(
i
&
(d)
<
being a public servant, and commits sexual assault on a person in his
custody or in the custody of a public servant subordinate to him.
being a public servant, takes advantage of his official position and
commits sexual assault on a person in his custody or in the custody of
a public servant subordinate to htm.
being on the management or oh 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, commits sexual assault on
any inmate of such jail, remand home, or institution ; or
being on the management or oh 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 sexual assault on any inmate of such jail,
remand home, place or institution ; or
being on the management or on the staff of a hospital, commits sexual
assault on a person in that hospital.
being on the management or on the staff of a hospital, takes
advantage of his official position and commits sexual assault on a
person in that hospital.
COMMENT - The underlined portion is the only addition made in this subsection.
<
(0
< /
being in a position of trust, authority, guardianship or of economic or
social dominance commits sexual assault on a person under such trust,
authority or dominance.
COMMENT - Not mentioned in the Law Commission’s proposal.
(
{
<
<
I
<
2(a)
(O
(b)
such person commits sexual assault on a woman who is suffering from
mental or physical disability.
COMMENT - Not mentioned in the Law Commission’s proposal.
(c)
(0
i
<
<
such person commits sexual assault on a woman who is pregnant.
commits sexual assault on a woman knowing her to be pregnant; or
such person commits sexual assault on a minor
commits sexual assault on a person when such person is under 15
years of age: or
\___
(
(
/
/
(
(
I
(
(
<
3
<
r
(
<
while committing sexual assault causes grievous bodily harm, maims,
disfigures or endangers the life of the woman or minor
COMMENT - Not mentioned in the Law Commission’s proposal.
4
such person commits or has committed protracted sexual assault on a
woman or minor.
COMMENT - Not mentioned in the Law Commission’s proposal.
5
where more than one person commits sexual assaults on a woman or
minor.
(g)
commits gang assault.
(
(
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 judgement, impose a sentence of imprisonment
of either description for a term of less than ten years.
Explanation 1. Where a person is sexually assaulted 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 sexual assault
within the meaning of this subsection.
Explanation I: Where a person is subject to sexual assault 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 sexual
assault within the meaning of this subsection
COMMENT - The underlined portion is the only change made in this subsection.
(
4
(
(
(
(
1
1
<
(
Explanation 2: “ Woman’s or children’s institution” means an institution, whether
called an orphanage or a home for neglected women or children or
widows’ or by any other name, which is established and
maintained for the reception and care of women or children.
Explanation 2. ’* Woman's or children's institution” means an institution, whether
called an orphanage or a home for neglected women or children or
widows’ home or by any other name, which is established and
maintained for the reception and care of women or children
I
<
t
<
<
(
COMMENT - The underlined word is the only change made in this subsection.
<
Explanation 3: ‘1 lospital” means the precincts of the hospital and includes the
precincts of any institution for the reception and treatment oi
persons during convalescence or of persons requiring medical
attention or rehabilitation
COMMENT - Reproduced identically in Expl. 3 to S.376.
t
(
(
t
I
161
b •
(
i
(
<
(
(
(
Section 376(1) ~ Punishment for Sexual Assault
(2)
(
Provided that the Court may in exceptional circumstances to be
recorded in the judgement, impose a sentence of imprisonment for a term
of less than 7 years but not less than 5 years.
(
(
t
(b)
I
i
Whoever commits sexual assault within the meaning of S.375 (2) (a) or
S. 375 (2) (b) shall be punished with imprisonment of either description
for a term that shall not be less than 7 years but which may be for life and
with a punitive fine.
fine
t
<
(c)
$
<
Whoever commits sexual assault w'ithin the meaning of S.375 (2) (c) shall
be punished with imprisonment of either description for a term that shall
not be less than 2 years but which extend to 5 years and with a punitive
Whoever commits sexual assault within the meaning of S.375 (2) (d) or
S.375 A (2) (a) read with S. 375 (2) (d) shall be punished with
imprisonment of either description for a term that shall not be less than 1
year but which extend to 3 years and with a punitive fine.
Section 376 - Punishment for Sexual Assault
t
(1)
1
<
<
<
Whoever, except in the cases provided in subsection (2), commits
sexual assault shall be punished with imprisonment of either
description for a term that shall not be less than 7 years but which
may be for life or for a term which may extend to 10 years and shall
be liable to fine unless the person subjected to sexual assault is his
ow n w ife and is not under 15 years of age, in which case, he shall be
punished w ith imprisonment of either description for a term which
may extend to 2 years or with fine or both.
t
Provided that if the father, grandfather or brother commits the
sexual assault, he shall be punished with rigorous imprisonment for_a
term that shall not be less than IO years but which may extend to life
imprisonment.
<
<
<
Provided that the Court may, for adequate and special reasons
to be mentioned in the judgement, impose a sentence of imprisonment
for a term of less than 7 years.
4
i
I
<
V
K
I7P
)
l
■
(
(
(
COMMENT - A common punishment has been prescribed for the various acts of
sexual assault Sexual assault by a man on his wife has been
differentiated from sexuai assauit by a man on any other woman. No.
only that the punishment prescribed for the two is also different,
th.- narapraoh underlined has been additionally added.
(
$
(
Section 376 (2) - Punishment for Aggravated Sexual Assault
(a)
(
Whoever commits sexual assault within the meaning of S 375 A (1) (a - f)
read with S. 375 (2) (a ) or (b) shall be punished with imprisonment of
either description for a term that shall not be less than 10 years but which
may be for life and with a punitive fine.
(
c
(
Provided that the Coun. may, in exceptional circumstances to be
recorded in the judgement, impose a sentence of imprisonment for a term
of less than 10 years but not less than 7 years.
(b)
(d)
(
Whoever commits sexual assault within the meaning of S.375 A (1) (a - f)
read with S. 375 (2) (c ) shall be punished with imprisonment of either
description for a term that shall not be less than 2 years but which extend
to 5 years and with a punitive fine.
(
Whoever commits sexual assault within the meaning of S.375 A (1) (a - 0
read with S 375 (2) (d ) shall be punished with imprisonment of either
description for a term that shall not be less than 2 years but which extend
to 3 years and with a punitive fine.
(
COMMENT - The punishment for the acts of ’Aggravated Sexual Assault’ has been
given in S. 376 (2) of the Law Commission’s proposal as a term that may
be for life but shall not be less than 10 years along with a punitive fine.
(
<
<
<
c
(
Section 376 (3) ■ Punishment for Sexual Assault .u/ S.375 A12}
(a)
(b)
Whoever commits sexual assault within the meaning of S.375 A (2) (a),
(b) or (c) where the minor i^over 12 years of age, read with S. 375 (x.) (a)
or (b) shall be punished with imprisonment of either description for a term
that shall not be less than 10 years but which may be for life and with a
punitive fine.
Whoever commits sexual assault within the meaning of S.375 (-) (a),
(b) or (c) on a minor of over 12 years of age, read with S 375 (2) (c) shall
be punished with imprisonment o! cither description for.a term that shall
<
(
(
<
I'
<
c
(
(
I
Jo ■
not be less than 5 years but which may be for 7 years and with a punitive
fine.
(
(
(c)
(
<
i
Whoever commits sexual assault within the meaning of S.375 A (2) (a),
(b) or (c) on a minor of over 12 years of age, read with S. 375 (2) (e) shall
be punished with imprisonment of either description for a term that shall
not be less than 7 years but which may be for 10 years and with a punitive
fine.
(
<
Section 376 A - I^niskmentJbrSexuaJ Assault of a Minor up to the age of
12 years and u/ S.375 A f3)
---------- ------
1
(a)
Whoever commits sexual assault on a minor person up to the age of 12
years or under S.375 A (3) read with S 375 (2) (a) or (b) shall be punished
with imprisonment for life and with a punitive fine
(b)
Whoever commits sexual assault on a minor person up to the aee of 12
years or under S 375 A (3) read with S. 375 (2) (c) shall be punished with
imprisonment of either description for a term that shall not be less than 3
years but which may be for 5 years and with a punitive fine.
(c)
Whoever commits sexual assault on a minor person up to the aee of 12
years or under S.375 A (3) read with S. 375 (2) (d) shall be punished with
imprisonment of either description for a term that shall not be less than 7
years but which may be for 10 years and with a punitive fine.
(d)
V\ hoever commits sexual assault on a minor person uo to the age of 12
years or under S_375 A (3) read with S. 375 (2) (e) shall be punished with
mpnsonment of either description for a term that shall not be less than 2
years but which may be for 3 years and with a punitive fine.
(
i
i
(
$
t
<
<
<
<
<
'•S/VCSUnCOMMOMCasesVNeu Micrcsori Word DocumenLdoc
4
Page JO 09/01/9‘?
‘4
(
4
4
171
174
-0-1
ANNKjLUkk**IX->
(
<
(
<
The Chairperson
Law Commission of Indi:Ira
Shastri Bhawan
Gate #2
7“’ Floor.
9/13/99
(
Dear Justice Reddy,
l
i
<
t
(
biJhe, <-'omrTIISS'on. Please find enclosed recommendations to be
orocedurp ar>H
Law C°mmiss'Qri regarding amendments to investigation,
procedure and evidence in Sexual Assault cases.
We do have some additional concerns which
we would like to clarify with the
Commission at the time of our
next meeting. This includes examining
implications of a "gender neutral” law
Best Regards.
i
For:
i
Naina Kapur
(Director. Sakshi)
Jasjit Purewal
(Director. IFSHAJ
Kirti Singh
(AIDWA)
i
l.-A
(
RECOMMENDED CHANGES FOR INTERROGATION., INVESTTGAWNr
MEDICAL EXAMINATION, -EVIDENCE-AN&-1JLKlL^Vr-PROCESSES IN CASES
RELATING TO SEXUAL ASSAULT
(
<
i
The Law Commission in its 84“' report has made several suggestions for the.
interrogation, investigation and medical examination in cases relating to^rape and
sexual assault against womerh- Ttre-suggestioHS-wrth-some modrfioatioTO-snoutdbe incorporated in the law. Certain other amendments to the law of Evidence
which will facilitate the trial of a complainant of sexual assault are also being
(
(
(
suggested.
1. The Law Commission has suggested that where the statement of-a victim girt
child below 12 years of age is to be recorded it should be done by a woman
Police Officer or by a V/oman who belongs to an organsiation interested in
(
<
the cause of women ar children.
(
i
Our Recommendation;
i. The statement of any complainant of sexual assault should only be recorded by
a woman police officer or_by any other women interested in the cause of the
women or children.
t
ii. The statement of a complainant of sexual assault should be made in the
present of a relative or friend of the complainant’s choice.
iii. The interrogation of a complainant should only be carried out at her home or
place of her choice and necessary clarification to Section 161 should be made as
suggested by the Law Commission.
In view of the above we suggest the following-changes-
I.
*
«
%
i
4
I
A new sub-section 3 to section 160 of the Code of Criminal Procedure be
added as under:
”(3) Where under this Chapter, the statement of a complainant of a sexual
offence is to be recorded such statement shalf be recorded either by a woman
police officer or by a woman social worker in the absence Of a woman police
officer.••”
”(4) a) Where the woman police officer is not available to record the statement of
the complainant of sexual assault, the officer in charge of the pofice station sriati,
to facilitate recording of the statement, forward a written request to a social
worker who shall upon completion submit the same to the officer in charge
I
(
/
2
(
( t
(
<
I* or amplification, the
b) Should the- said statement require further
the complainant either in person or
officer-in-charge may seek the same from f
through the social worker."
id forwarded under sub-sections (3)
(5) a) The statement of the girt recorded an<
law- refating to the admissibility in
and (4) above shall for the purpose of the
evidence of statements made by any person, be deemed to be a staiemen
recorded by a police officer."
t
I
II. The following proviso shall be substituted for the present proviso of Section
160(1):
(
------- , shall be
"Provided that no male person under the age of 16 years or woman,
her home or place of his or her
required to attend at any place other than his or I— -----
<
choice."
III.The following sub-section should be inserted after Section 166 of the I.P C. to
punish a police officer who fails to record a statement as stated above
”166.Whoever being a public servant:
(A) disobeys any direction of the law prohibiting him from requiring the
attendance at any place of any person for the purpose of investigation into
offence or other matter, or
(B) disobeys any other direction of the law regulating the manne
shall conduct such investigation to the prejudice of any person,
.^irh he
"shall be punished with imprisonment for a term which may extend to one year or
with fine or with both."
IV. A new Sub-section (6) should be inserted to Section 160 of the Code of
Criminal Procedure:
of an offence or in the course of an investigation into an offence, a re
friend of such male person or woman, and also a socia wor e
complainant’s choice shall be allowed to remain present throughout tne penou
(6) To ensure that the offence relating to sexual assault is promptly rec°rde
following section should also be added to the I.P C. as recommended y
Law Commission with slight variations
"167A Whoever, being an officer in charge o: a police station and r®^u'r^
law to record any information relating to the commission of a cogmsa
f
I7S
3
(
(
(
(
<
(
i
(
<
I
reportedsto him, refuses to record such information shall be punished with
imprisonment of either description for a term which may extend to one year and
with punitive fine.”
V. As- regards the medical examination of the victim and the accused we
recommend the following the-following sections should be inserted in the Code of
Criminal Procedure:
(
'‘164(A) Where a case of sexual Assault is reported to any police person, the
complainant is reported to any police person, the said police person shall without
any delay have the complainant medically examined by a registered medical
practitioner.
(
(
(
(
(
t
<
(B) The registered medical practitioner(s) to whom such person is brought shall
without delay examine the complainant and prepare a report specifically
recording the result of the complainant, examination and giving the following
details:
I)
<
'«)
Hi)
I
IV)
V)
VI)
(
the name and address of the victim and of the person by whom she was
brought
the age of the person
the general mental and emotional condition of the complainant
any signs of sexual assault to the mouth, anus, genitalia
any marks on or injuries to the body
other material particulars in reasonable detail"
(C) The report shall state precisely the reasons for each conclusion arrived at.
(
<
(
I
(
(E) The exact time of the commencement and completion of the examination
shall also be noted in the report and the registered medical practitioner
shall witl’iout delay forward the report to the complainant and the
investigating officer. The investigation officer shall forward it to the
Magistrate (referred to in Section 173(5)(a) as part of the documents.
(
(
(
(
<
(
<
(D) The report shall specifically record that the consent of the victim or of some
person competent to give such consent on her behalf to such examination has
been obtained.
i
(F) Nothing in this Section shall be construed as rendering lawful any
examination without the consent of the victim or of any person competent to give
such consent on her behalf.”
VI. The following sections should be added to Section 53A of the Code of
Criminal Procedure as recommenced by the Law Commission:
f
■t.
*
I
I?*
I
(
4
<
<
'•Sections 53 (1A), (IB), 1(C), and (ID), Code of Criminal Procedure. 1973 to be
(
inserted
(
(IA) When a person accused of sexual assault or an attempt to
(
be examined.
(
<
(IB) The registered medical practitioner conducting the
(without delay) examine such person and prepare a report specifics y
the result of his examination and giving the following particulars.
i
')
ng
the name and address of the accused and of the person by whom he was
brought
the age of the accusedand-evidence
other material particulars including traces of blood, semen
of any recent sexual activity in reasonabfe detaiTand
iv
)
any
other marks of injury, if any, on the person of the accused.
iv)
(IC) The report shall state precisely the reasons for such conclusion arrived at
i
n)
i'i)
(
(ID) The exact time of commencement and completion of the exam'na^lonJ^J
also be noted in the report and the registered medTcaHJrae^re^6^*™
delay forward the report to the investigating officer who shall forward it to
Magistrate referred to in Section i73-a9-part^the-deeumeHts-f^emed to in
clause (a) of sub-section (5) of that Section.”
VII. While granting bail to an accused in a sexual assault case, the accused shall
be restrained from being in proximity of the child from in any
mann
Y^atsnffver. The^mis Should he planed on the accused to show compliance wnn
this restriction.
VIII. In a case of sexual assault there shall be no interference with or disturbance
of the complaninant’s natural habitat by/ through the criminal justice process.
i
IX The investigation and. trial of all sexual offences should be time bound and not
take more than 6 months at the most. Particular care should be taken to address
the memory needs of children who have been sexual abused.
X, It should be clarified that the “social worker* described above should be
woman interested in/working for the cause of women and/or children and familiar
with issues of violence.
Our Recommendations for changes to the Indian Evidence Act1 1872
1)
Section 114 of the Evidence Act s shall be amended to reao as follows:
"114A In a prosecution for aggravated sexual assault under Section
where sexual intercourse (as defined thereunder) is proved and the ques i
i
is
177
i
(
(
(
5
(
i
■<
(
whether it was without the consent of the complainant and she states in her
evidence before the Court that she did not consent, the court shall presume that
(
she did net consent.”
4
2) Section 155(4) of the Evidence Act which allows questions regarding the
“general immoral character of a prosecutrix in a trial for ‘rape or attempt to
ravish” must be deleted.
I
(
t
3) The following clause 4 will be added to section 146 of the Evidence Act:
"4 In a prosecution for sexual assault - or attempt to commit sexual assault where
the question of consent is at issue, it shall not be permissible to adduce evidence
or to put question in the cross-examination of the complainant as to her previous
sexual history , character and conduct for providing such consent or the quality of
consent.”
(
4) Given the existing reality and limitations of accessing proper health care
systems, a special provision should provide that the absence of a medical report
in a case of sexual assault shall not be used against the complainant.
SPECIAL PROVISIONS FOR CASES OF CHILD SEXUAL ABUSE
We strongly feel that a minor complainant of sexual assault should not have to
give her/his oral evidence in the presence of the accused, as this will certainly
traumatize the minor. Appropriate changes in the law to prevent a minor witness
from being traumatized by court procedure should therefore be introduced.
:<
While steps are essential to reduce "system abuse" of chiid complainants, it will
be very difficult to totally eliminate this. Nevertheless, the use of the criminal
justice system to its fullest extent must be an important part of the strategy for
dealing with child sexual abuse.
ft
The co-ordination and use of both social and legal interventions is necessary to
minimize unnecessary interference with or disruption of the child complainant, to
help create a safe environment in which the child can revocer, and to provide
maximum leverage for the control and treatment of the offender.
4
SUGGESTIONS
r.
<
*
‘A
<
I
(
i
In this regard we wish to suggest the following for redress of child sexual abuse
cases:
1. A minor's testimony in a case of child sexuai abuse should be recorded in
court at the earliest possible opportunity in the presence of a judge and child
support person i.e. this may include a family/friend, relative or social worker that
the minor person trusts
t
17?
(
(
6
(
(
For this purpose the court should take steps to ensure at least one of the
following:
(
I.
<
(
(
ii.
iii.
(
(
i
(
iv.
permitting use of a videotaped interview of the child’s statement by the
judge (in the presence of a child support person)
allow a child to testify via closed circuit television or from behind a screen
to obtain a full and candid account of the acts complained of.
The cross-examination of a minor should only be carried out by the judge
based on written questions submitted by the defense upon perusal of the
testimony of the minor.
Whenever a child is required to give testimony, sufficient breaks should be
given as and when required by the child.
2) All cases of sexual assault must be tried by Special Courts with court
personnel including judges, prosecutors, counselors, specially trained/sensitised
to issues of sexual assault.
I
ANNEXURE E
1??
NATIONAL COMMISSION FOR WOMEN
I
I attended the meeting with Mrs. Leela Seth, Member,
Law*
CommisBion of India on 16.9.99 at 11.0 a.m on the
I
subject of proposed •
legislative provisions pertaining to sexual assault. This meeting
j arose out
of a petition made by Sakshi vs. Union of India drawing the attentioin of the
Supreme Court to the fact that the present laws relating to rape, are not
adequate to cover various sexual atrocities against women or child gexual
abuse. Sakshi proposed a draft amendment to the present provisions in IPC
and the same came up for examination by the Law Commission. Hence’ Law
Commission also prepared a draft and wanted the comments of NCW. The
Chairperson, NCW desired that I should attend this meeting on behalf of the
NCW.
I have given following suggestions on behalf of the NCW:-
1)
The present word rape is proposed to be replaced by
word sexual assault. This is agreed to:
2)
The provisions relating to child should be mentioned
separately so that specific cases of child sexual abuse may get
proper focus;
3)
Under the draft only two levels of sexual assault have
been recognised:
i)
Which is equivalent to rape and hence
punishable with punishment which is 7 years and upward;
ii)
Cases coming under unlawful sexual contact for
which maximum punishment proposed is simple imprisonment
for three years, (sexual annoyance not involving physical
contact is dealt with separately u/s 509)
I have suggested dial we may recognise the three degrees of sexual
assault:
1)
Cases which are equivalent to present word rape as I
proposed under 375 (a) to (d)
I
ZX 01113238154
NCW
DELHI
&02
l$0
I
/
o
(
(
H)
Cases of grievious sexual assault where actual rape
may not have been perfonned but lhefe is either an intention to kill
the spirit of the victim and instil a fear psychosis or the tramia
undergone by the victim is of extreme nature.
HI)
Other cases of unlawful sexual contact which need not
necessarily invoke serious trauma or sever psychosis as I proposed
under 376 ofIPC.
Alternatively the proposed 376(E) should provide for a punishment
of rigorous imprisonment upto 7 years for general category and for 10 years
in case of children, so that it can effectively cover cases under category H
above.
I have also put forward the view that the 2nd alternative will not be •
able to focus upon the trauma undergone by the victim and only if the case
is handled with sufficient sensitivity then punishment upto 7 years and •
commensurate with the mental trauma undergone by the victim will be
awarded.
t
(
(
(
(
<
(
(
(
(
<
4)
The present draft lists out six circumstances of sexual assault
and clarifies by way of explanation that44SEXUAL INTERCOURSE BY A
MAN WITH HIS ‘ OWN WIFE (THE WIFE NOT BEING UNDER
FIFTEEN YEARS OF AGE. IS NOT SEXUAL ASSAULT”
I have suggested that marital sexual intercourse by a man with his
wife without consent should also be considered as sexual assault At the
most, unlike in other six categories the onus of establishing that consent was
not given may lie with the wife. I have also suggested the inclusion of the
8th circumstance of sexual assault which would replace the proposed
376(A) and would read as below:
‘"Where a man has sexual intercourse with his wife who is
living separately from him either under a decree of separation or
under any custom or usage or for any other reason whatsoever,
without her consent”.
5)
I have suggested that the provisions of proposed 376(B),
376(C), 376(D) may be combined together and be called custodial sexual
intercourse (the word custodial having the suggested meaning only for the
purpose of this section) so as to include sexual intercourse by any public *
servant, police officer, superintendent of jail, remand home, hospital
■ incharge or other institutions by virtue of which a man can exercise authority
or control over the inmates. Thia is only a drafting suggestion.
(
(
C
(
(
<1
X
(
(
(
I
Itl
(
(
Qina
/"FAX 61113238164
(
I
NCW
ftoii
DELHI
(
i
(
(
(
(
l
(
(
(
I have flJio suggested that the punishment for this should ba a
minimum of three years which may extend upto 7 years and also liable for
fine.
I would like to emphasise here that these proposed sections 376 (B),
376(C) and 376(D) arc meant for covering cases of custodial sexual
intercourse not amounting to offence of sexual assault i.e. not without the 1
consent.
Hence, an express explanation should be added to say that in such !
cases sexual intercourse will be presumed to be sexual assault when the ;
victim says that ahe had been assaulted without consent and the burden of
proof wiii lie on the accused penron.
This express explanation is available under the present Act but not
proposed in the draft.
(
(
(
(
(
i
(
(
Above are the 5 points made by me
I
I
(
(Leeka Mehendale)
JL Secretary
17.9.99
(
(
Mrs Leela Seth
Member
Law Commission of India
Shastri Bhavan
New Delhi
Fax No. 3388870
(
. (
(
(
j
i
(
1
(.
(
r
■(
!
>(
I
I
il
e
c
il
y
/
(
^2
'< AWiki
H/^cf
Smt. L^ru Mthtndale
'AS
JOINT SECRETARY
National Commission for Women
4.
xmf
4, Deen Dayal Upadhyaya Marg
002
New Delhi-110 002
(
Ttl. : 3236110
3236154
<
<
Govrmment of India
iTF^r
I
(
/
Ho. JS ! HC^lLtl
(
(
i
<
October 14, 1999.
Member,
Law Commission of India.
Shastri Bhawan,
New Delhi.
Subject:
Proposed legislative provisions pertaining to sexual assault
Madam.
th. ^T,US 1S m thC fUrtherance to the suggestions made earlier on die behalf of
IcinH nT1155!.0" °2 thC ab°Ve referred s,lbJect- J would like to bring in to your
India
3t \ 6 ^■omm’SS10'1 bas proposed following amendments in the
Mini<rf EVI/unCC ACn tO thc DcPartmcnt of Women and Child Development,
Ministry' of Human Resource Development.
<
- Steps should be takein to delete section 155(4) of the Indian Evidence Act
1872, wnich reads as:
that th
S man ,S ProsecL1^ec^ ^nr raPe or an attempt to ravish, it may be shown
hat the prosecutrix was of generally immoral character".
- Section 54 ci indran Evidence Act should be amended
to include the
following;
previl^TH01?0^’ lhC Prosecutio» can adduce the evidence to establish the
preuous bad character ol the accused which shall be relevant to the case.”
Yours faithfully,
•v
(LEENA MEHENDALE)
i
I '<
f" - L
Annexur«-T
Extract of section 409B of the-Crisea Act, 1900 (Kew
Walea) an/i n^cnnnendations of the gew South— wales Law Oosamission pertaining to it nade in its
?m?<Ss2)7 °2oJ7i598)of "tetl0“ *”B °£ u” orl,“'
LIST OF RECOMMENDATIONS
RECOMMENDATION 1
Section 409B should be retained.
iK RECOMMENDATION 2
Section 409B should
follows:
be amended to
provide as
409B.(1)(a)
This
section
applies
to
criminal
proceedings for a prescribed sexual offence, whether
those proceedings are for that offence alone, or
together with any other offence (as an additional or
alternative count).
(b) This section applies to all stages of criminal
proceedings, including bail, committal, summary
hearing, trial, sentencing, and appeal.
(c) This section applies to an Inquiry Into a conviction
for a prescribed sexual offence under Part 13A of this
Act.
(d) In this section:
“the accused person”. In relation to any
proceedings, means the person charged with a
prescribed sexual offence;
“the
complainant”,
in
relation
to
any
proceedings, means the person, or any of the
persons, upon whom a prescribed sexual
offence with which the accused person is
charged is alleged to have been committed;
“prescribed sexual offence” means:
(I) an offence under section 61B, 61C, 61D,
61E, 611, 61J, 61K, 61L, 61M, 61N, 610, 65A,
ix
1^1
66, 66A, 66B, 66C, 66D, 66F. 73, 74,
78B, 78H, 781, 78K. 78L, 78N, 780.’
80A, 86, 87. or 89;
(ii) an offence (such as an offence ui
section 37 or 112) which includes
commission, or an intention to commit
offence referred to in paragraph (i); or
(iii) an offence of attempting, or of conspii
or incitement, to commit an offe
referred to in paragraph (i) or (ii).
(2)(a) In proceedings to which this section appl
evidence relating to the sexual reputation of
complainant is inadmissible.
(b) Notwithstanding subsection (2)(a), evidence at
any sexual experience or sexual activity, or lacF
experience or activity, of the complainant shall noi
inadmissible merely because it also relates to
sexual reputation of the complainant.
(3)(a) In proceedings to which this section applies,
evidence shall be admitted about any sex
experience or activity of the complainant, or lack
sexual experience or activity, except with leave of
court.
(b) For the purposes of subsection (3)(a), “sex
experience or activity" includes sexual experience
activity to which the complainant did not consent.
(4) The court shall
subsection (3)(a) unless:
not
grant
leave
um
(a) the court is satisfied that the evidence t
significant probative value to a fact in issue or
credit; and
(b) the probative value of the evidence sought to
admitted substantially outweighs the danger
prejudice to the proper administration of justitaking into account the matters set out
subsection (6); and
x
(
(c) the party seeking to admit the evidence has
complied with the requirements in subsection (7).
J
o
(
(
(
(■
(
(
I
/
(
(
(
(5) Evidence of s complainant's sexual experience or
activity is not admissible to support an inference that,
by reason only of the fact that the complainant has
engaged in sexual activity Aor. has had sexual
experience, the complainant:
(a) is the type of person who is more likely to have
consented to the sexual activity that forms the
subject-matter of the charge; or
(b) is less worthy of belief.
(6) In determining whether the probative value of the
evidence sought to be admitted substantially
outweighs the danger of prejudice to the proper
administration of justice under s 409B(4)(b), the court
shall take into account the following matters:
(a) the interests of justice, including the right of the
accused to make a full answer and defence;
(b) the distress, humiliation, or embarrassment which
the complainant may suffer as a result of leave
being granted;
(c) the risk that the evidence may unduly arouse
discriminatory belief or bias, prejudice, sympathy
or hostility in the jury;
(d) the need to respect the complainant’s personal
dignity and privacy;
(e) whether there is a reasonable prospect that the
evidence will assist in arriving at a just
determination in the case;
(f) any other factor which the court considers
relevant.
(7) The party seeking leave under subsection (3)(a)
must do so by application to the court in writing and
must: j
(
(
(
(
(
(
(
XI
<1
(a) set out:
°
(i) the nature of the evidence sought to be
adduced; and
(ii) how the evidence has significant probative
value to a fact in issue or to credit;
(b) give a copy of the application to the other party
within such time before the hearing of the
application as the court may prescribe or
considers to be appropriate in the interests of
justice in the particular case.
(8) The court must hear an application to grant leave
under subsection (3)(a) in the absence of the jury (if
any) and the public.
(9) The complainant is notI a compellable witness at
for leave under
the hearing of an application
; . , '
subsection (3)(a).
(10) At the conclusion of the hearing of an application
for leave under subsection (3)(a), the court must make
a determination whether or not to grant leave to admit
the evidence and must record or cause to be recorded.
(a) the reasons for that determination;
(b) where the court grants leave to question the
complainant, the nature of the evidence which
may be elicited.
(11) Where evidence of a complainant’s sexual
experience or activity is admitted at trial under this
section, the judqe shall give a warning to the jury to
the effect that they must not infer, by reason only o
the fact that the complainant has engaged in sexual
activity or has had sexual experience:
(a) that the complainant is less worthy of belief,
(b) 'where consent is an issue at the trial, that the
complainant is the type of person who is more
likely to have consented to the sexual activity that
forms the subject-matter of the charge.
- S '
Review of section 409B of the Crimes Act 1900 (NSW)
2.1
Section 409B currently provides ns follows:
409B.(l)
In this section:
“the accused person”, in relation to any proceedm
means the person who stands, or any of the persons u
stand, charged in those proceedings with a prescribed sexi
offence;
“the complainant”, in relation to any proceedings, mea
the person, or any of the persons, upon whom a prescrib
sexual offence with which the accused person stands charg
in those proceedings is alleged to have been committed.
(2)
In prescribed sexual offence proceedings, eviden*
relating to the sexual reputation of the complainant
inadmissible.
(3)
In prescribed sexual offence proceedings, evidence whic
discloses or implies that the complainant has or ma
have had sexual experience or a lack of sexus
experience or has or may have taken part or not takei
part in any sexual activity is inadmissible except:
(a) where it is evidence:
(i)
of sexual experience or a lack of sexua
experience of, or sexual activity or a lack oi
sexual activity taken part in by, the
complainant at or about the time of the
commission of the alleged prescribed sexual
offence; and
(n) of events which are alleged to form part ot a
connected set of circumstances in which the
alleged
prescribed
sexual
offence
was
committed:
(b) where it is evidence relating to a relationship which
was existing or recent at the time of the commission
of the alleged prescribed sexual offence, being a
relationship between the accused person and the
complainant;
(c)
12
e
where:
(t) the accused person is alleged to have had
sexual intercourse, as deiined in section 61 H« 1).
-4 •
Current operation of section 409B
with the complainant and tr.e accused person
does not concede the sexca! mtercourse so
alleged; and
(n) it is evidence relevant
to whether the presence
of semen, pregnancy, disease
or injury is
attributable to the sexual intercourse alleged to
have been had by the accused person;
(d) where it is evidence relevant to whether
(i)
at the time of the commission of the alleged
presenbed sexual offence, there was present in
the complainant
------ : a disease which, at any
relevant time, was absent m the accused
person; or
(») at any relevant tune, there was absent in the
complainant a disease which, a: the time of the
comm.ssion of the alleged p.-esenbed sexual
offence, was present m the accused person;
(e) where it is evidence relevant u whether the
legation that the prescribed sexual offence was
committed by the accused person was first made
following a realisation or discovery cf the presence
of pregnancy or d.sea.e m the complainant (being a
realisation or discovery which took place after the
^nunission of the alleged prescribed sexual offence);
(0
u'here it is evidence given by the complainant in
cross-examination bv cr on behalf cf the accused
person, being evidence given in answer to a question
which may. pursuant to subsection (5). be asked.
humiliationPr°batlVp Va’Ue outwei&hs an>’ distress,
a
embarrassment which the complainant
might suffer as a result of its admission.
w
•H.ll
tp give
|
evidence winch is inadmissible under
• subsection (2) or (3). or
(a)
(b)
by or on behalf of the
accused person, to give
evidence which is or
mav be admissible under
13
Review of section 409B of the Crimes Act 1900 (NSW)
)
)
subsection (3) unless the Court or Justice has
previously decided that the evidence would, if given,
be admissible.
)
)
(5) In prescribed sexual offence proceedings, where the
Court or Justice is satisfied that:
)
1
(a) it has been disclosed or implied in the case for the
prosecution against the accused person that the
complainant has or may have, during a specified
period or without reference to any period:
■)
.)
had sexual experience, or a lack of sexual
experience, of a general or specified nature; or
)
(ii) taken part or not taken part in sexual activity
of a general or specified nature; and
•*
(b) the accused person might be unfairly prejudiced if
the complainant could not be cross-examined by or
on behalf of the accused person in relation to the
disclosure or implication,
(i>
)
)
)
the complainant may be so cross-examined but only in
relation to the experience or activity of the nature (if
any) so specified during the period (if any) so specified.
)
(6) On the trial of a person, any question as to the
admissibility of evidence under subsection (2) or (3) or
the right to cross-examine under subsection (5) shall be
decided by the Judge in the absence of the jury.
)
(7) Where a Court or Justice has decided that evidence is
admissible- under subsection (3), the Court or Justice
shall, before the evidence is given, record or cause to be
recorded ir. writing the nature and scope of the evidence
that is so admissible and the reasons for that decision.
>
>
(8) Nothing •a this section authorises the admission of
evidence <•: a kind which was inadmissible immediately
before the commencement of this section.
)
)
2.2
)
evidence of a complainant’s “sexual reputation"; and
9
*
evidence of a complainant’s “sexual experience”.
)
)
)
)
Section 4O9B applies to two types of evidence:
14
Z
Part 111
I
Responses to the 172nd Report on
Review
of Rape Laws by the Law
Commission of India dtd.
25.3.2000 filed in the Supreme
Court of India in W.P.
(Cr.)33 of 1997
I
IN THE SUPREME COURT OF INDIA
t
CRIMINAL ORIGINAL JURISDICTION
IN
WRIT PETITION NO. 33 OF 1997
IN THE MATTER OF:
... Petitioner
Sakshi
Versus
Respondents
U.O.I. & Ors.
To
The Hon'ble Chief Justice of India
And His Companion Justices of the
Supreme Court of India
Responses on behalf of the Petitioner to the 172nd Report on Review of
Rape Laws by the Law Commission of India dtd. 25.3.2000 filed in the
Supreme Court of India in W.P. (Cr.) 33 of 1997
1. By an order dtd.
v
Commission
of
18.02.2000 this
India
to
consider
Hon’ble Court requested the Law
the
comments
of
representative
organisations, including the petitioner herein, to the Law Commission
responses and recommendations on amendments to the Indian Rape Law.
2. The petitioner seeks to reiterate the contents of the comments prepared by
representative
organisations
(namely,
Sakshi,
IFSHA
and
AIDWA,
(hereinafter referred to as “R.O.’s”) who participated in the discussions with
2
/<?/
t
the Law Commission of India (hereinafter referred to as the “L.C.") and which
are attached and marked as Annexure “A” hereto.
3. At the outset, the petitioner submits that the present petition has been filed
seeking judicial interpretation of section 375 of the Indian penal code to
<
provide effective relief for complainants of child sexual abuse pending
<
legislative amendments. This Hon’ble Court vide its order dtd. 9.8.99 directed
*
The Law Commission of India to consider certain precise issues raised by the
present petition and “consider the feasibility of making recommendations for
4*
amendment of the Indian Penal Code or deal with the same in any other
<
manner so as to plug loopholes”. Irrespective, the Law Commission has not
addressed the existing interpretation of Sec.
375 pending legislative
(
amendments as per Part I and II of the issues framed by Sakshi Petitioner to
(
address child sexual abuse in its present form. It is submitted that subject to
any proposed amendment to the existing law of rape which will take an
(
inordinate period of time, judicial interpretation of section 375 of the Indian
Penal Code is called for in the interim especially in light of the exponential rise
<
in child sexual abuse cases.
(
4. At the same time, the existing report proposing new legislation has refrained
from addressing specific issues regarding child sexual abuse. This despite
that the petitioner and other representative organisatiosn strongly urged that
proposed amendments address co-ordination and use of both social and legal
' (
<
interventions as necessary to minimize unnecessary interference with or
disruption of the child complainant to help create a safe environment in which
i
I
the child can recover. The same is consistent with the suggestions set out by
the Hon’ble High Court of Delhi in K.C. Jakhu vs. S. Jakhu (Crl.P. No. 101/96,
23.5.96) as well as laws of other jurisdictions which were brought to the notice
of the Law Commission of India but which find no expression in the present
report.
5. In this regard the petitioner and others had proposed the following in both
written as well as oral submissions before the said Law Commission:
<
To ensure children are not subjected to the trauma of adult yardsticks in the
process of a criminal trial for child sexual abuse, amendments in the existing law
ought to consider the following
r Taking steps to ensure an appropriate and safe environment in which a child
can depose.
Ensuring recording of a child’s statement (in the presence of a child support
person) at the earliest possible time. For this purpose, permitting use of a
videotaped interview of the child’s statement.
> Allow a child to testify via closed circuit television or from behind a screen to
obtain a full and candid account of the acts complained of
> The cross-examination of a minor should only be carried out by the judge
based on wntten questions submitted by the defense upon perusal of the
testimony of the minor with sufficient breaks should be given as and when
required by the child.”
4
1^3
> Establishing special courts to address sexual assault with specially trained
personnel
The said suggestions have been viewed largely as “impractical” by the Law
Commission in its present report. However, in response to the first suggestion,
_
•
*
<
the Law Commission has, suggested the following proviso to the section 273 of
/
the Criminal Procedure Code:
(
(
“Provided that where the evidence of a person below sixteen years who is
(
alleged to have been subjected to sexual assault or any other sexual offence, is
(
to be recorded, the court may, take appropriate measures to ensure that such
<
person is not confronted by the accused while at the same time ensuring the
rights of cross-examination of the accused.
t
The proposed amendment is based on considerations of “an accused’s rights to
{
natural justice” according to the Law Commission but fails to take into account
the larger substantive equality rights of a child which are subject to harm,
(
prejudice and disadvantage under the existing process of criminal trials for child
(
sexual abuse. The proposed amendment projects the rights of an accused as
paramount and fails to give any consideration to the social context of children
who face child sexual abuse which is now well-documented in India and the rest
of the world. At the same time, the said proposal fails to address existing rules
(
(
<
and procedures which are harmful to the interests of a child witnesses in such
t
I
(
(
5
cases. In this regard, the petitioner craves reference to paras 2-5 of Annexure A
attached hereto.
6. Similarly the petitioner's recommendations on presumptions of age (which
often vork against young persons who are sexually abused) bail (especially in
cases of family sexual abuse, time bound hearings (given the tender age of
children involved), the presence of support persons, punishment and
aggravated sexual assault have not been addressed by the existing report.
The petitioner craves leave to refer to sections II, III, IV and V of Annexure A
attached hereto.
7. With respect to the definition of sexual assault in the existing Law
Commission Report, the Commission has failed to address deletion of section
354 (outraging the modesty of a woman) which contradicts the conceptual
shift from the language of rape to gender neutral sexual assault sought in the
present law reform. The report has retained section 509 (“Insulting the
modesty of a women”) with some modification which is also inconsistent with
the conceptual shift sought to be achieved in the present draft to the language
of “sexual assault”. In this regard, the petitioner craves reference to section VI
and VII of Annexure “A" attached hereto.
8.
On the matter of ‘consent’, ‘marital rape’ and other miscellaneous concerns
of the petitioner, the same are not represented in the present draft of the Law
Commission report. The Petitioner craves leave to refer to sections VII, XII
and XIII of Annexure “A" attached hereto. The petitioner submits that the
I
6
14
and 21 of the Constitution.
9. In view of the aforesaid and failure of the Law Commission to effectively
*
provide for complainants of child sexual abuse, judicial interpretation of the
<
section 375 and in particular “penetration" for the purposes of rape is called
for.
(
<
(
Naina Kapur & Meenakshi Arora
(
(
Advocates
On behalf of the Petitioner
(
(
<
(
(
<
(
t
(
i
(
(
I
t
t
I
Part IV
I
Draft Legislation
¥
I
By
SAKSHI, IFSHA, AIDWA
I
THE CRIMSNAL LAW AMENDMENT BILL 2000
(
I
t
(
I
I
DRAFT BY
£
AIDWA
IFSHA
SAKSHI
Hfc'
BILL NO.
OF 2000
THE CRIMINAL LAW AMENDMENT BILL
A Bill based on 172nd report of the Law Commission to amend the laws relating to
sexual assault in Section 375, 376, 354 and 509 IPC and the relevant sections of the
Code of Criminal Procedure 1973 and the Indian Evidence Act 1872.
I
Short title and extent: -
1.
This act will be called the Criminal Law Amendment Act 2000.
It extents to the whole of India except the State of Jammu and Kashmir.
II
Changes in the Indian Penal Code, 1860
1.
Substitution of existing section 375 of the IPC recommended - the existing
section 375 be substituted by the following:
"375. Sexual Assault:
(a)
penetrating the vagina (which term shall include the labia majora), the anus or
urethra of any person with -
i)
ii)
I
(
i
Sexual assault means -
any part of the body of another person or
an object manipulated by another person
(b)
manipulating any part of the body of another person so as to cause penetration of
the vagina (which term shall include the labia majora), the anus or the urethra-oF by
the offender'b^ny part of the other person’s body;
(c)
introducing any part of the penis of a person into the mouth of another person;
(d)
engaging in cunnilingus or fellatio; or
(e)
continuing sexual assault as defined in clauses (a) to (d) above
in circumstances falling under any of the six following descriptions:
First - Against the other person’s will.
Secondly - Without the other person’s consent.
I
• I
r
(
Thirdly - With the other person’s consent when such consent has been obtained
by putting such other person or any person in whom such other person is
interested, in fear of death or hurt.
Fourthly - Where the other person is a female, with her consent, when the man
knows that he is not the husband of such other person and that her consent is
given because she believes that the offender ft another man to whom she is or
believes herself to be lawfully married.
1
!
I
(
Fifthly - With the consent of the other person, when, at the time of giving such
consent, by reason of unsoundness of mind or intoxication or the administration
by the offender personally or through another of any stupefying or unwholesome
substance, the other person is unable to understand the nature and consequences
of that to which such other person gives consent.
<
(
(
(
Sixthly - With or without the other person’s consent, when such other person is
under sixteen years of age.
Explanation 1 ; Penetration to any extent is penetration for the purposes of this
section.
(
Explanation 2 ; Consent means the unequivocal voluntary agreement by a
person to engage in the sexual activity in question.
(
(
-)
Recasting of section 376 of the IPC recommended; - Section 376 shall be recast as
follows:
<
<
“376. Punishment for sexual assault - 1 (a) whoever, except m the cases provided for by
sub-section (2) commits sexual assault 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.
(
(
(
(b)
if the sexual assault is committed by a person in a position of trust or authority
towards the person assaulted or by a near relative of the person assaulted, he/she shall be
punished with rigorous imprisonment for a term which shall not be less than ten years but
which may extend to life imprisonment and shall also be liable to fine.
I
(
(
Provided that the court may, for exceptional and special reasons to be mentioned
in the judgment, impose a sentence of imprisonment for a term of less than the minimum
punishment prescribed in this sub-scction but not for a term less than 5 years and 7
years for clause a and b respectively.
(
(
(
I
(
(
(
Provided further that nothing with respect to the character or conduct of the
complainant shall be considered as exceptional and special reason for reduction of
sentence.
1
(2)
Whoever,being a police officer commits sexual assault(a)
(i)
(ii)
(iii)
■
(iv)
(b)
(c)
(d)
(e)
(0
(g)
(h)
I
(i)
I
0)
within the limits of the police station to which he is appointed; or
in the premises of any station house whether or not situated in the police
station to which he is appointed; or
on a person in his custody or in the custody of a police officer subordinate
io him; or
While such person is in uniform.
being a public servant, takes advantage of his official position and
commits sexual assault on a person in his custody as such public servant
or in the custody of a public servant subordinate to him; or
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 women’s or children’s institution takes advantage of his
official position and commits sexual assault on any inmate of such jail,
remand home, place or institution; or
being on the management or the staff of a hospital, takes advantage of his
official position and commits sexual assault on a person in that hospital; or
commits sexual assault on a pregnant woman, or
commits se.xual assault on a person when such person is under sixteen
years of age; or
commits gang sexual assault, or
being in a position of economic or social dominance commits sexual
assault on a person under such dominance, or
commits sexual assault on a person suffering from mental and
physical disability, or
while committing sexual assault causes grievous bodily harm, maims
disfigures or endangers the life of a woman or minor
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 exceptional 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 but not less than 7 years.
!
(
Provided further that nothing with respect to the character or
( conduct of the
i
complainant shall be considered as exceptional and special reason for reduction of
sentence.
Explanation 1, - Where a person is subjected to sexual assault 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 sexual assault 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 women or children or a widows home or an
institution called by any other name, which is established and maintained for the
reception and care of women or children.
Explanation ?. - “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.
Modification in section 376A of the IPC recommended
as follows :
II 3
I
i (
■
(
(
<
(
Section 376A shall read
Deletion of Section 376 A - The existing Section 376 A is hereby deleted.
The existing Sections 376 B, C &. D will become Section 376 A, Section 376 B
and Section 376 C.
“376A. Sexual intercourse by public servant with person in hiS-CUSiodY- ~ Whoever, being
a public servant, lakes advantage of his/her official position and induces or seduces any
person, who is in his/her custody as such public servant or in the custody of a public
servant subordinate to him, to have sexual intercourse with him/her. such sexaax
intercourse not amounting to the offence of sexual assault, shall be punished with
imprisonment of either description for a term which shall not be less than five years and
which may extend to ten years and shall also be liable to fine.
II 4
Provided that the court may, for exceptional and special reasons to be mentioned
in the judgment, impose a sentence of imprisonment for a term of less than five years.
(
i
(
(
(
(
Provided further that nothing with respect to the character or conduct of the
complainant shall be considered as exceptional and special reason for reduction of
sentence.
Explanation; “Sexual intercourse” in this section and sections 376B and 376C shall mean
any of the acts mentioned in clauses (a) to (e) of section 375. Explanation to section 375
shall also be applicable.”
(
(
(
(
I
(
(
g c.
“376R Sexual intercourse by superintendent of tail, remand home, eic^ Whoever, being
the superintendent or manager of a jail, remand home or other p ace o cus; ci y
established by or under any law for the time being in force or of a women s or children s
institution takes advantage of his/her official position and induces or seduces any inmate
of such jail, remand home, place or institution to have sexual intercourse with
such sexual intercourse not amounting to the offence of sexual assault, shall be pums e
with imprisonment of either description for a teim which shall not be less than five years
and which may extend to ten years shall also be liablerio fine.
Provided that the court may, for exceptional and special reasons to be mentioned
in the judgement, impose a sentence of imprisonment for a term of less than five years.
Provided further that nothing with respect to the character or conduct of the
complainant shall be considered as exceptional and special reason for reduction of
sentence.
Explanation 1. - “Superintendent” in relation to a jail, remand home or other place of
custody or a women’s or children’s institution includes a person holding any other office
in sucli jail, remand home, place or institution by virtue of which he/she can exercise any
authority or control over its inmates.
Explanation 2. - The expression “Women’s or children’s institution” shall have the same
meaning as in Explanation 2 to sub-section (2) of section 376.
376C. Sexual intercourse bv any member of the management or staff of 3 hospital wilh
any woman in that hospital. - Whoever, being on the management of a hospital or being
on
on the staff of a hospital takes advantage of his/her position and has sexual intercourse
with any person in that hospital, such sexual intercourse not amounting to the offence of
sexual assault, shall be punished with imprisonment of either description for a term which
shall not be less than five years and which may extend to ten years 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 for a term of less than five years.
Provided further that nothing with respect to the character or conduct of the
complainant shall be cqusidered as exceptional and special reason for reduction of
sentence.
Explanation; - The expression “hospital” shall have the same meaning as in Explanation
3 to sub-scction (2) of section 376.”
(Paragraph 3.4 &. 3.4.1, supra)
J
II 5
Insertion of new sections 376E recommended- - A new section, namely section
376D be inserted in the IPC in the following tenns :
-376D.Unlawful sexual contact, - (1) Whoever with a sexual purpose, touches, directly
or indirectly, with a part of the body or with an object, any part of the body of another
person, not being the spouse of such person, without the consent of such other person,
shall be punished with simple imprisonment for a term which may extend to three years
or with fine or with both.
I
I
1
(-)
(3)
Whoever, with a Sexual purpose, invites, counsels or incites a young person to
touch, directly or indirectly, with a part of the body or with an object, the body oi
any person, including the body of the person who so invites, counsels or incites,
or touches, with a sexual purpose, directly or indirectly, with a part of the body or
with an object any part of the body of a young person, shall be punished with
imprisonment of either description which may extend to five years and shall also
be liable to fine.
Whoever being in a position of trust or authority towards a young person or being
a person with whom the young person is in a relationship of dependency, touches,
directly or indirectly, with a sexual purpose, with a part of the body or with an
object, any part of the body of such young person, shall be punished with
imprisonment of either description which may extend to seven years and shall
also be liable to fine.
<
• t
4
(
(
t
Explanation: ”Young person” in this sub-section and sub-section (2) means a person
below the age of sixteen years.”
II 6
Deletion of Section 354 IPC - Section 354 of IPC is hereby deleted.
II 7
Deletion of Section 377, - Section 377, IPC is hereby deleted.
II 8
Amendment of section 509, IPC.- The existing section 509 be amended as follows
(
(
i
-509. JWord, gesture or act with a sexual purpose or with the intention to insult a
woman:
(
Whoever’, with a sexual purpose or with the intention to insult any woman,
utters any word, makes any sound or gesture, or exhibits any object or a part of the
body intending that such word or sound shall be heard, or that such gesture or object
shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be
punished with imprisonment for a term which may extend to three years and shall also be
liable to fine.”
i
2-
New section 166A, IPC.- A new section 166A be introduced in the IPC in the
following terms :
11 9
(
“166A.
Whoever, being a public servant (a)
(b)
<
knowingly disobeys any direction of the law prohibiting
him from requiring the attendance'at any place ot any
person for the purpose of investigation into an offence or
other matter, or
Knowingly disobeys any other direction of the law
regulating the manner in which he shall conduct such
investigation, to the prejudice of any person, shall be
punished with imprisonment for a term which may extend
to one year or with fine or with both.
Ill
Changes recommended in the Code of Criminal Procsdiirc. 1973
HI 1
insertion of sub-sections (3) and (4) in section 16Q of the CQ.d.e of Criminal
Procedure. 1973. - The following two sub-sections be inserted in sectional 60 of the code
of Criminal Procedure:
t,
.
‘
•’(3) Where under this chapter, the statement of a Wale is to be recorded eirher as first
information of an offence or in the course of an inye•stigation into an offence and she is a
376, 376A, 376B, 376C, 376D,
person against whom an offence under scctions^B?^375,
:
iwor 509 of the Indian Penal Code is alleged to haVe been committed or attempted, the
female- police officer and in case a female police officer
statement shall be recorded —by
j —a-------is not available, by a female government servant available in the vicinity and in case a
female government servant is also not available, by a female authorised by an
organisation interested in the welfare of women or children.
(4)
(
(
III 2
Where in any case none of the alternatives mentioned in sub-section (3) can be
followed for the reason that no female police officer or female government
servant or a female authorised by an organisaztion interested in the welfare of
women and children is available, the officer in charge of the police station shall,
after recording the reasons in writing, proceed with the recording of the statement
of such female victim in the presence of a relative of the victim.”
Modification of the proviso to sub-section (1) of section—L6Q- ~ The age
mentioned in the proviso to sub-section (1) of section 160 should be raised from
fifteen years to sixteen years.
e
t
(
Substitution of the proviso to sub-section (1) of section 160. - In addition to the
above modification, the proviso to sub-section (1) of section 160 be substituted to
read as follows :
III 3
“Provided that no male person under the age of 16 years or woman shall be
required to attend at any place other than the place in which such male person or
women resides. While recording the statement, a relative or a friend or a social
worker of (he choice of the person whose statement is being recorded shall be
allo\\<d to remain present.
i
i
i
Insertion of a new section, namely, section 164A in the code of Criminal
Procedure. 1973, - The following section 164A be inserted in the code of
Criminal Procedure :
3^^
“164A.
(1) Where, during the stage when any offence under section 376,
Section 376A, section 376B, section^76D, is under investigation and it is proposed to get
th^e victim examined by a medical expert, such examination shall be conducted by a
registered medical practitioner,, with the consent of the complainant or of some person
competent to give such consent on his/her behalf. In all cases, the complainant should be
sent for such examination without any delay.
III 4
r
f
(
Provided that if the complainant happens to be a female, the medical examination
shall be conducted by a female medical officer, as far as possible.
(
The registered medical practitioner to whom the complainant is forwarded
shall without delay examine the person and prepare a report specifically
recording the result of his examination and giving the following details:
f
• (2)
(i)
(ii)
(iii)
(iv)
(v)
(3)
(4)
(5)
<
<
The name and address of the complainant and the person by whom he/she
was brought,
the age of the complainant,
marks of injuries, if any, on the person of the complainant,
general mental condition of the complainant and
Other material particulars, in reasonable detail.
The report shall state precisely the reasons for each conclusion arrived at.
The report shall specifically record that the consent of the complainant or
of some person competent to give such consen1 on his/her behalf to such
examination had been obtained.
The exact time of commencement and completion of the examination shall
also be noted in the report, and the registered medical practitioner shall
without delay, forward the report to the investigating officer, who shall
forward it to the Magistrate referred to in section 173 as part of the
documents referred to in clause (a) of sub-section (5) of that section.
(
(
(
(
(
(
(
(
i
2-04
(6)
111 5
i
<
i
Nothing in this section shall be construed as rendering lawful any
examination without the consent of the complainant or any person
competent to give such consent on his/her behalf.”
Insertion of new sections 53A in the Code of Cnminal Procedure-1
fhe proposed section 53A shall read as follows:
”53A. (1)
When a person accused of any of the offences under sections 376,
376A. 376B. 376C, 376D or^=?6£or of an attempt to commit any of the said offences, is
arrested and an examination of his/her person is to be made under this section, he/shc
to be
shall be sent without delay to the registered medical practitioner by whom he/she iis-------
examined.
the registered medical practitioner conducting such examination
shall
Without delay examine such person and prepare a report specifically recording the result
of his examination and giving the following particulars:
(2)
(i)
the name and address of the accused and the person by
Whom he was brought.
(ii)
(iii)
(iv)
(3)
the age of the accused,
marks of injury, if any, on the person of the accused, and
Other material particulars in reasonable detail.
the report shall state precisely the reasons for each conclusion
arrived
al.
I
(4)
The exact time of commencement and completion of the
(4)
examination shall also be noted in the report, and the registered medical practitioner
shall, without delay, forward the report to the investigating officer, who shall forward it
to the Magistrate referred to in section 173 as part of the documents referred to in clause
(a) of sub-section (5) of that section.”
(Paragraph 4.6.2, supra)
111 6
-376
Consequential amendments in the First Schedule to the Code of Criminal
Procedure, 1973 recommended. - Consequent^iigon the proposed amendments in
the I PC, the existing entries in respect of sections^37^CJ to 376D, 377 and 509 will
n’ ave to be substituted«and-entry in respect oFnew section 376E, TPC wilLhave-tG—
he inserted 3S undcE-:---- ‘i/v
51
354J™
Court of
NpnImprisonment
for Ditto
I Sexual assault
Sessions
bailable
not less than 7 years
.
205 '
or life
Dino
Sexual assault
committed by a
person in a
position
of
trust
or Imprisonment for life
authority
or imprisonment for Cognizable
towards
the 10 years and fine
Non'
person
bailable
assaulted or by
a near relative
. of the person
assaulted.
I
I
I
Dino
Ditto
(
(
376 (2)
I
I
I
Sexual assault
by ai police
officer or by a
I public servant
or by ;a person
being on the Imprisonment for life
management or or imprisonment for
on the staff of 10 years and fine
a jail, remand
home or other
place
of
custody
or
women’s
or
children’s
institution
or
by a person on
the
management or
on the staff of
a
hospital,
taking
advantage
of
his
official
position eto'
Sexual assault
by the husband
upon his wife
during
separation.
f
(
Cognizable
Nonbailable
Dino
I
I
(
(
(
<
<x
(
(
I
(
(
(
(
(
20 €
Cognizable
376A
(
Nonbailable
Imprisonment for 7
Sexual
intercourse by years and fine
public servant
with person in
his custody.
Ditto
i
i
(
Imprisonment for 10
years and fine
• 376B
i
i■
Cognizable Nonbailable
Ditto
(
Ditto
Sexual
intercourse by
Superintendent
of jail, remand
home etc.
Ditto
376C
I
I 376D
Ditto
I Sexual
I intercourse by
any member of
the
management or
staff
of
a
hospital with Ditto
any woman in
that hospital.
Ditto
Ditto
Ditto
Ditto
Imprisonment for 3
years, and fine
cognizable
Non
Bailable
Ditto
Imprisonment for 5
Unlawful t
sexual contact years and fine
with a young
person.
Cognizable
Non Bailable
Ditto
Unlawful
Imprisonment
for
sexual contact upto 7 years and fine
by a person in |
Cognizable
NonBailable
Ditto
Unlawful
sexual contact.
(
f
I
I
I
2^
I
in trust etc.
509
Utrering
any Imprisonment
for
word
or upto 3 years and fine
making
any
gesture
intended
to
insult
the
modesty of a
woman etc.
Cognizable
I 354
Delete
Delete
Delete
Delete
Delete
bzz
Delete
Delete
Delete
Delete
Delete
I
i
I
Nonbailable
Magistrate
of
the
First Class
i
(
(
L_
III 7
<
(
Amendment of sub-section (6) of section 19S of the code of Criminal Procedure,
1273, - Consequent upon proposed amendment of section 376 of IPC, sub-section
(6) of section 198 CrPC shall be amended in the following manner: -
The words “sexual intercourse” shall be substituted by the words “sexual assault”
and the word “fifteen’' shall be substituted by the word “sixteen”.
(
(
III 8
In Section 164 of the Cr.P.C. shall be amended as follows: -
The present sub section I will be read as 1 (a) and a new sub section 1 (b) will
be added to the following effect: -
(
<
(a)
Any statement made under sub section (a) by a young person under the age
of eighteen years who is a victim of sexual assault under Section 375, 376 or Section
509 shall, except in exceptional circumstances be video taped.
H1 9 Amendment of section 273, Code of Criminal Procedure. 1973, - A proviso to the
following effect be added under section 273 above the Explanation clause therein:
Provided that where the evidence of a person below eighteen years who is alleged
to ha\ c been subjected to sexual assault or any other sexual offence, is to be recorded, the
court shall, take appropriate measures to ensure that such person is not confronted by the
accused. These measures may include video taping the evidence of the complainant
in a place to be decided by the Court, or placing a screen between the complainant
and the accused and others. Provided further that the cross examination of a young
person below^erghteen years shall be carried out by the court on questions put to it
by the accused or hiTcounseT
i
k
I
(
1
IV
Changes recommended in the Indian Evidence Ack 18/2
IV 1
Modification of Section H4A of the Evidence Act. - Section 114A be
modified to read as follows:
(
(
i
(
{
“114a. Presumption as to absence of consent in certaiiunrosecutions for sexual
assault. - In a prosecution for sexual assault under (a) or clause (b) or clause(c) or
clause (d) or clause (e) or clause (g) or clause (h) (i) or (j) oi sub-section (2) of
section 376 of the Indian Penal Code (45 of I860) where sexual intercourse by the
accused is proved and the question is whether it was without the consent of the
other person alleged to have been sexually assaulted and such other person states
in his her evidence before the court that he/she did not consent, the court shall
presume that he/she did not consent.
Explanation: “Sexual intercourse” in this section and sections 376A to 376C
shall mean any of the acts mentioned in clause (a) to (e) of section 375.
Explanation to section 37-5 shall also be applicable.”
1\' 2
Deletion of danse (4) of section 155 of the Evidence Act.- Clause (4) of
section 155 of the Evidence Act is hereby deleted.
IV 3
Amendments in proposed section 53A, Evidence Act-- After section 53,
the following section be inserted:
1
(
(
(
(
(
■’5?A. In a prosecution for an offence under section 376. 376A. 376B, 376C,
37(>D or 376E or for attempt to commit any such offence, where the question of
consent is in issue, evidence of the character of the victim or of his/her previous
sexual experience with any person shall not be relevant on the issue of such
consent or the quality of consent.”
1V 4
Insertion of clause (4) in section 146 of the Evidence Act- In section 146
of the Evidence Act, the following clause shall be added after clause (3):
”(4)
In a prosecution for an offence under section 376, 376A, 376B, 376C or
376D or for attempt to commit any such offence, where the question of consent is
in issue, it shall not be permissible to adduce evidence or to put questions in the
cross-examination of the victim as to his/her general immoral character, or as to
his her previous sexual experience with any person for proving such consent or
the quality of consent.”
t
IV 5 A new section will be inserted in the Indian Evidence Act to make the
video taped or other statement of the minor complainant of sexual assault
admissible in evidence as follows:
“In any trial or inquiry related to the sexual assault of a minor under Section
375, 376 and 509 of the Indian Penal Code, the video taped statement of the
minor made to a Magistrate is admissible in evidence if the complainant
while testifying adopts the contents of the video taping.”
AIDW A
IPS MA
SAKSHI
(
I
i
- Media
8297.pdf
Position: 1173 (7 views)