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IPC, Sections 376, 420 read with Section 34 – “Breach of a promise and not fulfilling a false promise” – Breach of promise to marry - If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape - There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do - Such cases must be treated differently - If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape - The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC. (2018)2 SCeJ 1918
IPC, Sections 376, 420 read with Section 34 - There is a clear distinction between rape and consensual sex - The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception - Rape and consensual sex. (2018)2 SCeJ 1918
IPC, Section 376(2)(b) - Complainant had fallen in love with the appellant and that she needed a companion as she was a widow - Were having love affair and started residing together for quite some time - Appellant married some other woman - It is not her case that the complainant has forcibly raped her - She had taken a conscious decision after active application of mind to the things that had happened - Not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind - Not a case of rape but consensual sex. - Do not make out a case against the appellant. (2018)2 SCeJ 1918
IPC, Section 375 – Rape - The expression "against her 'will'" means that the act must have been done in spite of the opposition of the woman - An inference as to consent can be drawn if only based on evidence or probabilities of the case - "Consent" is also stated to be an act of reason coupled with deliberation - It denotes an active will in mind of a person to permit the doing of the act complained of. (2018)2 SCeJ 1918
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IPC 376. Punishment for rape —
(1) Whoever, except in the cases provided for by sub-section (2), commits rape 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 unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
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 seven years.
(a) being a police officer commits rape—
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman 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 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 rape on any inmate of such jail, remand home, place or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age; or
(g) 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 an orphanage or a home for neglected woman or children or a widows’ home or by any other name, which is established and maintained for the reception and care of woman 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.
CLASSIFICATION OF OFFENCE
Para I: Punishment—Imprisonment for life or imprisonment for ten years and fine—Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.
Para II: Punishment—Imprisonment for two years or fine or both—Non-Cognizable—Bailable—Triable by Court of Session—Non-compoundable.