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Section 376 (2)(g) in the Indian Penal Code 1860

Lonika

History

The world has evolved and changed. But the problem of crime still persists. And the eternal question is- are we still civilised? It is hard to imagine any nation corruption and crime free. The idea of ideal nation now only seems to be illusionary. Man has improved his living style and becoming knowledgeable and says that he now resides in a civilised society. But the question arises, about the society which man talks is really civilised?  The values and the great thoughts preached by holy man and great leaders seem to have been forgotten. Is there any place left for moral and positive thoughts in this so called civilised society? Where has the inner concise of man faded? Was war of Indian Independence fought to see this India?

In this paper I will deal with the crimes related to relationship between man and woman. Somewhere in pre historic times there was no concept of marriage. In tribes it was allowed to have sex with as many woman or man they wanted to. This lead to the problem of identification of the father of the child because as woman had intercourse with so many men that it was quite difficult to recognize the father. This also created quarrel among people as they became possessive about the woman they admire and to overcome this rural liberty problem a rule was framed for the tribal in which a man could have sex with only one woman and he need to choose the woman in front of entire tribe and a ceremony was held for the same. This how the concept of marriage evolved and is followed till date.

With the changing time the man developed and he started residing in a society and civilised himself. There are code of conduct and certain rules and regulations for the society and its abided by it. The one who violates code of conduct and rules and regulations is called criminal and is awarded with certain punishment prescribed by law. Among all the rules there is one prominent rule that everyone should have liberty, liberty to life, work etc., but why this right to liberty only enjoyed by males and why woman needs to sacrifice the same. Man due to his sick sexual desire always threats woman at workplace, college, school, hospital, home etc., and he is so desperate that he forces a woman into sex violating all rules and regulations leading towards. Any sort of physical intimacy without the consent of partner is termed as rape.

The history of rape or the term has evolved from Roman civilisation and Greek mythology and this sexual harassment is now days very common and can be found everywhere where woman resides. Punishment of this heinous crime should be very brutal and there are countries which award rigorous punishment to offenders but India lacks in this phase.

Indian perspective

Section 375 of IPC defines rape as: “Aman 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:-
First: Against her will.
Secondly: Without her consent.
Thirdly: 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.
Fourthly: 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.
Fifthly: 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.
Sixthly: With or without her consent, when sixteen years of age.

Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

Here in this light is been focused on the crime of gang rape and section 376 (2) (g) of IPC gives a brief description of it. As per section 376 (2) (g): who commits gang rape, 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 judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Explanation 1- Where a woman is raped 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 rape within the meaning of this sub- section.

Explanation 2.-" women' s or children' s institution" means an institution, whether called and orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.

Explanation 3.-" 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.

In simple words it can be concluded that when two or more than two person commits rape of a woman it is been termed as gang rape and everyone is liable with the same punishment whether they have raped the woman or not. The one who has not raped is equally liable as the person who has raped because all of them in a group have acted in furtherance to the common intention to commit rape of the woman. When there is common intention to do a work than liability of every person is equal. Section 34 of IPC defines common intention and it says:

“Acts done by several persons in furtherance of common intention: -When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone”.

Common intention under section 34 requires a pre- arranged plan and common intention does not constitute that everyone should have same intention rather it means that intention of everyone should be known to rest of them and shared by them.

India is known for worshiping woman and are been personified as goddess since ages but is this the way of worshipping woman? Is rapping a woman worshiping mythology in India? India is known for its culture and heritage but is this Indian culture?

India is currently one of the fastest growing economies of the world, but all the developments are not positive. With the advancement in technology and globalisation there is degradation in culture and morality. Cruelty and crime against women and girls are speeding and the state is becoming unsafe shelter for women and girls to reside solely and together both. As per the data 90% of crimes in India are against woman. Every day they are been exposed to danger as soon as they leave their homes. It’s the ugly and worst truth that every 20 minute a woman is raped in India.

64 years have passed of India been independence and current year India will be celebrating its 65 th Independence Day. India is the biggest democracy in world but if we peep into its real meaning do really India is the biggest democracy? Can everyone really do what they want? Are the concept of equality, fraternity, peace, justice, respect, etc., in true sense dwelling in India? India will be a democratic in true sense only when the day comes, where a woman leaves her house alone at midnight and reaches back to her home safely. This is opinion resemble to Gandhi and I personally is in very much support of this concept. A country where woman fears and is unable to reside and rome freely is not democratic in fact its in violation to the concept of democracy.

There are cities in the country which are highly prone to sexual offences and the capital is converting into ‘rape capital’ and losing its identity of metro and developed. Following are the cities highly rating high in sexual offences:

1. Delhi: From past few years the capital city is been declared as the most unsafe place for woman and from past few months its been highlighted for the cases of gang rape. Recent gang rape case of Damini is one of the most heinous and thundering incident which could ever happen. This incident jerked the country upside down. Naked Damini for hours on road showed that how much love, respect, care and humanity is there in hearts of Indian and how helpful they are. No one was there to hear the cry of that girl and not only this particular case there are bulks of cases where the cries of women and girls are buried and no heed is paid toward it.

As per government statistics 635 women were raped in the year 2012 and 572 in the year 2011. Delhi ranks first in the sexual offences.

2. Mumbai:Government statistic reveals a high number of rapes and molestation cases in Mumbai but as per surveys it dint rhank in such incidents. In past year there were 200 rape cases and 500 molestation cases and many victims were minor. In recent week there have been rape- murders and sexual abuse.

3. Bangalore:It is India’s fast growing commercial capital and an industrial hub and known for Silicon Valley. Its also a travel destination but its worst phase is that it has highest crime rate in South India. As per statistic around 48 % of Bangalore females feel unsafe in travelling alone and working during night hours.

4. Gurgaon:With growing industrialisation and commercialisation Gurgaon is also becoming vulnerable place for women to dwell. Many rape, kidnapping, harassment cases are been reported specially targeting working or solo women.

5. Hyderabad: In the year 2011 and 2012 around 4000 each cases of crime against women were reported and out of which many were of rape cases. Statistics says that around 140 rape cases are recorded every year.

6. Kolkata: Sexual offences have increased rapidly. There are also many cases of unnatural sex, rape, sexual harassment, abduction etc., There are several number of cases where maids were raped by their employee’s and same in the case with patient in hospitals.

7. Meerut:In general Meerut is one of the dangerous or unsafe places for women to dwell because rate of gang rape and molestation is very high over here and even as per surveys 90% of females feel unsafe to work and reside at this very place.

8. Vijayawada: Despite of the fact that it has been titled as ‘the global city of future’ this place has become hostile towards women. Last year 1 rape case was recorded every month and there were no. of dowry deaths, snatching and child sex abuse.

9. Pune: Cases of forced sex and kidnapping are much recorded in this cultural capital of Maharashtra.

10. Guwahati: Sarcastically it can be said that Assam is the follower of national capital in cases of crime against women. Guwahati is the largest city of Assam and its noted for frequent assault, mob rape and molestation.

11. Ahmedabad: It has highest no. of wife beaters in country though now days it stands at lower place in surveys and statistics. Even there are several incidents of rape, sexual abuse and harassment.

It’s not so that only these 11 cities are prone to aristocracies against woman and else are safe. Infact there is no such corner in world where crime against woman doesn’t takes place. Each single activity of a woman is been noted and the man can be called as ‘greedy dog’ acts as watch dog always seeking for an opportunity when he could catch hold the woman. In every state, city, district and village in India offences like rape and gang rape are happening only reason behind highlighting these particular cities is that all these rates high in such incidents. At

Everyday in the newspaper there are news regarding rape and gang rape instead I should say that no single day passes when any news regarding sexual offences is not been published in newspaper. Is there a need of new laws or strict implementation of the already existing laws should be there? In my opinion codification of new laws won’t help in reduction of crime rates against women especially in cases of ‘Sexual offences’. Even after the ‘Damini gang rape’ man’s inner concise hasn’t waken and he is constantly indulging himself in such heinous crimes. Is the thirst of sex in man so high or is man that desperate, to satisfy himself he forgets the liberty, respect, right, etc., of a woman? There are no flaws in the law but the actual problem lies in its implementation. Even if new laws are codified until they’re implemented strictly they’re just a waste of paper and time.

It’s not the case that only men are responsible behind such crimes or only they are the culprits. There are cases and situations where a woman abets or is a part of the conspiracy against woman. Its been rightly said by some learned that woman is only the enemy of woman. The day when a woman will stop bitching and biting a woman 60% of crime rate will reduce automatically.

If we go through what is written in section 376 (2) (g) crux can be drawn that both men and women can be held liable in case of gang rape as per the facts. Section says, ‘any person who commits crime in furtherance to common intention…’. ‘Any person’ means that it can be a man or a woman or the both because to convict a person for gang rape what is necessary is the presence of common intention. There are several cases where women were the culprit and they were convicted by high courts but were acquitted by Supreme Court on the basis that woman cannot be convicted u/s 376 (2) (g) though the law says so.

The question of law arising out of this situation is, ‘whether a woman can be prosecuted for a gang rape?’ a woman can not commit rape of another woman but if a woman facilitates others for committing rape than she can be convicted u/s 376 because there was a common intention and to convict a person for the offence of gang rape what is requires is the presence of common intention. Section says that even if a single person rapes and rest all just facilitate him everyone will be equally held liable.

In Priya Patel vs. State of M.P. (2006) prosecutrix facilitated her husband in committing rape of deceased and trial court and high court in their order convicted Priya Patel and her husband both for gang rape on the basis:

“The High Court asserted the view that, a women cannot commit rape but when a women facilitates the commission of rape, she can be prosecuted for “gang rape” under section 376(2) (g) IPC”.

Aggrieved by the order Priya approached Supreme court where the Hon’ble court overruled the order of high court by saying that this is in contradiction with section 375 of IPC and a woman cannot be held liable for the commission of rape and acquitted Priya from the charge of section 376 (2) (g).

Now is this judgment not contradicting the section 376 (2) (g)? Are the judges sitting there at high courts and trial courts less learned? Do they have less or indefinite knowledge regarding law? Or they are incapable of interpreting a law? Is the ruling of Supreme Court not contradicting the section 376 (2) (g)? A rough idea can be drawn from this ruling that Supreme Court’s judgment is much based on its discretion rather than on the law. Is really justice done over here? If the hon’ble apex court continue with the same practice than a woman can never be charged of the same offence and rackets running all over can never be caught hold or stopped because maximum no. of rackets are been headed by woman.

Many questions are taking shape in my mind from such sort of judgments and I don’t know where I’ll get my answers. At one side we say that man and woman are equal but do they really equal? If they are equal than why at reservation offices and many such offences there are separate queues for woman and they are given first preference? Why when the question of convicting a woman comes whether in this section 376 (2) (g) or other woman is either acquitted as done here or served with lesser punishment? Do concept of equality exists in its true sense?  In fact there are many more questions clubbing and clouding in my grey matters.

India is lacking behind in giving severe punishments for such heinous crimes and this is one of the reasons why this crime rate increasing day by day in our country. This is high time and there is need now that the country and countrymen awake themselves into the heaven of freedom. Time has come and now this great democracy should be turned in its real terms. The society which says that its civilised should now be civilised in real sense. Everyone on earth has right to live with dignity and no one has right to hamper each other’s dignity.

Government and educational board should introduce sex education in schools and many conferences and such sessions should be held to make people more aware and even to stop and reduce the rate of sexual offences. Once a person come across something his excitement towards that thing reduces which is very necessary to stop such heinous crimes. Even parents and family members from initial stage should provide healthy environment at home so that child becomes more civilised and disciplined when he grows.

At last I would say that time has come when there is need to bring revolution to safeguard women and girls because the ‘Astitva’ of man and everyone lies in her and with her.

‘Respect woman to be prosperous ’