RAPE LAW: Need for a relook

The need to revisit Indian Penal Code's Section 375 and expand upon it is felt now more than before

Gajanan Khergamker Mumbai

To weigh every crime by the same measure and rule lacks logic in that with the varying nature and gravity would change the corresponding punishment, however deterring, retributive, preventive, reformative or compensatory in nature. So, our system has a maximum sentence laid down by the codes wherein a court of law could pass a sentence up to a maximum of whatever has been specified and no more.

The need to revisit Indian Penal Code's Section 375 and expand upon it is felt now more than before. Far from any attempt to dilute the section and/or its punishment, there is a valid need to expand its definition and evolve a table of corresponding punishments.
Section 375 that deals with rape reads:

A man is said to commit 'rape' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:
 Against her will
 Without her consent
 With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt
 With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married
 With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent
 With or without her consent, when she is under sixteen years of age
Most important here, in the context, that is commonly confused remains the second condition wherein a man has sexual intercourse with a woman without her consent.

The first context in which a man has sexual intercourse with a woman against her will, irrespective of her age, consent, state of mind etc., and the sixth in which a man has sexual intercourse with or without her consent when she is under sixteen years of age is construed an out-and-out rape by general standards which would neither condone the act nor leave space for any blame-sharing.
Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception: Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.

Recently, a 21-year-old woman was allegedly raped by an unidentified youth in his mid-twenties at a railway station in Mumbai. The victim was raped on a foot-over-bridge (FOB) at the Ghatkopar station. After raping the victim, the accused allegedly admitted her to a hospital. The victim narrated the incident to policemen at the hospital after which a case of rape was registered.

According to a senior police inspector, the victim lost her parents a few years ago in an accident. Since then, she had been living at the Kalyan railway station and did odd jobs like washing utensils at food stalls at the station for a living. On Saturday night, she boarded a CST-bound local train and alighted at Ghatkopar station. She was sitting on the FOB when the accused tried befriending her. He then forcibly dragged her in a corner and allegedly raped her.

With the accused absconding and the victim's medical report - revealing violent assault proved through skin under nails, scratches on thighs etc. - matching her FIR, it seems like a regular rape. And, the onus is on the police to find the culprit, perform the requisite medical tests on him to bring him to court for a judgement.

In the case of film star, Shiney Ahuja, who allegedly raped his maid, "there was no consent in the act", said an assistant commissioner of police. "It was forceful. Shiney threatened her that if she shouts, he will beat her up. He has admitted his guilt," he said. Now, when one says it was forceful, there's an implication of force and no question of the victim's will involved. So, the issue of consent does not arise at all here, in legal context as it (the sexual intercourse) was allegedly against her will.

One must realise that any confession made by Ahuja before the police, as claimed, can be quashed in court as it could have been extracted by force or by coercion. There are three cases registered against Ahuja at the Oshiwara police station under Section 342 (wrongful confinement), Section 506 (criminal intimidation) and Section 376 (rape), which if proved, could fetch the actor upto 10 years in prison. Medical tests have proved till now that there has been sexual intercourse between Ahuja and his maid. While that in itself could seem like a shocking act considering the actor is married and has a child, it surely doesn't constitute rape by any stretch of imagination.

Now, if the maid's version holds good throughout a cross-examination - considering she'll be put through one during trial - and corroborates the evidence obtained from medical reports, the charge of rape can hold good. However, if Ahuja manages to prove past occurrences of sexual intercourse with the maid, with her consent, it could dilute the matter which might (or might not) go in his favour.

In another incident, a 60-year-old dermatologist was arrested by the Colaba police for alleged rape of a 29-year-old woman. The woman filed a complaint last week but the doctor denied the allegation.

"According to the complaint, the victim visited the doctor, Manohar Shubhani, in June 2006 to seek treatment for a skin allergy. But the doctor injected her with a sedative and took her snaps in the nude," a senior police inspector had said. The woman complained that from June 2006 to February 2009, the doctor blackmailed her and forced her into a physical relationship with him. "The suspect promised the victim to hand over her nude photographs if she agreed to a physical relationship. But he did not keep his word," said the inspector.

For almost three years, the woman did not inform her family about the incident. Recently, after a fight with the doctor, she told her mother and approached the police. The hard disk of a computer from the doctor's cabin was seized by the police and sent to the Kalina forensic laboratory for investigation.

In this case, the victim's consent for sexual intercourse was obtained. However, in legal terminology, the consent wasn't 'free consent', as it was obtained by fraud. Consent, is examined in detail in Section 11 of the Indian Contract Act, 1872. Consent is said to be free when it is not caused by coercion, misrepresentation, fraud, undue influence or mistake.

Here, consent was obtained by fraud which is defined in Section 17. Accordingly, fraud means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party hereto of his agent or to induce him to enter into the contract:

 The suggestion, as a fact, of that which is not true, by one who does not believe it to be true
 The active concealment of a fact by one having knowledge or belief of the fact
 A promise made without any intention of performing it
 Any other act fitted to deceive;
 Any such act or omission as the law specially declares to be fraudulent.

If the prosecution can prove the consent was sought by the above means - fraud in this case - it wasn't free and concurrently the act of sexual intercourse turns into rape exposing the doctor to possible penal action as laid down by the law.

In another case, a third year MBBS student from Mumbai's St George Hospital accused Dr Rahul Deswal, a junior doctor at the same hospital, of raping her. Deswal, was on deputation to the hospital while he was completing his final year of master of surgery. "He first proposed her. After promising to marry her, he raped her," said a senior inspector of the local police station. Deswal, a resident of Haryana, allegedly raped her one year ago after spiking her drinks. He allegedly even clicked her obscene photos on his laptop and began blackmailing her. He even physically tortured her and raped her at least 8-10 times in the last one year.

The police confiscated Deswal's laptop and cellphone and sent them for examination. They have also booked him for criminal intimidation and taking advantage of his official position to rape a woman in the same hospital where he was serving.

Prima facie, Deswal's case looks a little rusty in places. For one, questions are being raised about the victim's version: Why would a girl want to marry her blackmailer?

Just to put a point across, there are situations where jilted suitors stalk victims to seek revenge. In the reverse situation, where a girl is jilted by a boy, the chance of her crying rape is high as it would spoil the boy's image and mar his future prospects.

The victim claims that her consent was obtained by the suspect by intoxicating her or by administering a stupefying or unwholesome substance, that she was unable to understand the nature and consequences of that to which she gave consent, fitting within Section 375's fifth description, in dumping charges on the 'perpetrator'. She also maintains that the act was without her 'free' consent, as it was obtained by fraud. He had promised to marry her - Section 375's second description.

However, in his defence, if the suspect proves that he intended to marry her had it not been for reasons beyond his control, the charge of rape may well fall through. Proving charges against Deswal spiking her drink and blackmailing her will be difficult owing to the passage of time. If the images indicate 'knowledge' and 'free will' of the victim during the process of intoxication, the allegations will also fall through.

Now, all three incidents, dissimilar from each other by way of nature, have one common factor. All three acts concurrently call for persecution of the accused for rape as under Section 375 of the IPC. There is, however, an urgent need to revisit the law and expand upon it to segregate and concurrently justify the penal aspect of the section which otherwise treats a very wide range of felonies - some really grave, others more domestic and civil in nature and concurrently insignificant crimes - with the same measure and rule.