Law on 376 IPC- 2020 Judgments of Supreme Court and High Court

376 IPC:

Punishment for rape.

(1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which 1 [shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine].

(2) Whoever,—

(a) being a police officer, commits rape—

(i) within the limits of the police station to which such police officer is appointed; or

(ii) in the premises of any station house; or

(iii) on a woman in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or

(b) being a public servant, commits rape on a woman in such public servant’s custody or in the custody of a public servant subordinate to such public servant; or

(c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or

(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 in force or of a women’s or children’s institution, commits rape on any inmate of such jail, remand home, place or institution; or

(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or

(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or

(g) commits rape during communal or sectarian violence; or

(h) commits rape on a woman knowing her to be pregnant; or

2 * * * * *

(j) commits rape, on a woman incapable of giving consent; or

(k) being in a position of control or dominance over a woman, commits rape on such woman; or

(l) commits rape on a woman suffering from mental or physical disability; or

(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or

(n) commits rape repeatedly on the same woman,

shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.

Explanation.—For the purposes of this sub-section,—

(a) “armed forces” means the naval, military and air forces and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government;

(b) “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;

(c) “police officer” shall have the same meaning as assigned to the expression “police” under the Police Act, 1861 (5 of 1861);

(d) “women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or an institution called by any other name, which is established and maintained for the reception and care of women or children.

3 [(3) Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this sub-section shall be paid to the victim.]

Judgments on 376 IPC:

SUPREME COURT OF INDIA

Ranjan Gogoi, C.J.I., Deepak Gupta and Sanjiv Khanna, JJ.

2020(4) R.C.R.(Criminal) 109

Indian Penal Code , 1860 Sections 376 (2)(f), 377 and 201 Rape – Unnatural sex – Both husband and wife are accused – As per reasons given in judgment and order, offence under Section 302 IPC not made out against accused husband equally apply to wife ‘s case – Injuries caused to deceased as established by medical evidence on record – Therefore, conviction modified from Section 302 to Section 325 and sentence of seven years rigorous imprisonment as in case of accused husband – Conviction under Section 120-B set aside.

SUPREME COURT OF INDIA

Jagdish Singh Khehar and S.A. Bobde, JJ.

2015(2) R.C.R.(Criminal) 802

Criminal Procedure Code, 1973 Section 300 Indian Penal Code , 1860 Sections 376 IPC and 494 Double Jeopardy – Husband getting ex-parte divorce against wife , but continued cohabiting with wife without telling the wife the factum of divorce – Husband thereafter contracting second marriage – Wife after coming of facts filed a complaint under Section 376 I.P.C. against husband – Husband discharged within trial – Second complaint by wife under Sections 493 , 494 I.P.C. against husband not barred under Section 300 Cr.P.C. –

(i) This section mandates that the dismissal of a complaint, or the discharge of an accused, would not be constructed as an acquittal, for the purposes of this Section.

SUPREME COURT OF INDIA

Jagdish Singh Khehar and S.A. Bobde, JJ.

2015(2) R.C.R.(Criminal) 802

Indian Penal Code , 1860 Sections 376 and 493 Indian Penal Code , 1860 Sections 493 and 376 Husband getting ex-parte decree of divorce against wife , but continued cohabiting with her taking advantage of her ignorance – Ex-parte decree of divorce later on set aside – Husband not guilty of offences under Sections 376 IPC and 493 I.P.C.

ON FACTS

Husband obtaining decree of ex-parte divorce against wife , but continued co-habiting with her without filling her about divorce – Ex-parte decree set aside after about 2 years – Complaint by wife against husband under Section 376 IPC. – Accused discharged – Charge under Section 493 I.P.C. also not made out –

(i) It came to be concluded, that the matrimonial ties between the husband and the wife were restored, with the setting aside of the ex-parte decree of divorce, it would amount as if the matrimonial relationship had never ceased.

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SUPREME COURT OF INDIA

Markandey Katju and Gyan Sudha Misra, JJ.

2011(2) R.C.R.(Criminal) 599

Indian Penal Code , Section 376 (2)(a) – Murder and gang rape in Police custody – Accused (Policemen) wrongfully confined the deceased and his wife (prosecutrix) in Police custody on suspicion of theft case – According to statement of prosecutrix she was raped by five Policeman in presence of her husband in a barbaric manner – One Policeman hit her private par will stick – The accused beat her husband to death – Supreme Court observed that there was no reason to disbelieve the prosecutrix who gave graphic description of barbaric conduct of the accused – No charge under Section 302 Indian Penal Code framed – One accused sentenced to 3 years RI while others sentenced to 10 years RI with fine – Supreme Court observed, “in the normal course, we could have issued notice of enhancement of sentence, but as no charge under Section 302 Indian Penal Code was framed, we cannot straightaway record conviction under that provision and enhance the punishment” – Appeal against conviction dismissed.

SUPREME COURT OF INDIA

R.P. Sethi and Doraiswamy Raju, JJ.

2002(3) R.C.R.(Criminal) 159

Indian Penal Code , Sections 376 IPC and 302 IPC – Gang Rape and Murder – High Court acquitted the accused on the ground that husband of deceased was coward and could not save his wife despite her cries and thus no reliance could be placed on his testimony – Order of acquitted set aside – Even if husband was coward, this is no ground not to rely upon his testimony.

SUPREME COURT OF INDIA

Madan Mohan Punchhi and K.T. Thomas, JJ.

1996(3) R.C.R.(Criminal) 410

Criminal Procedure Code, 1973, Section 227 – Indian Penal Code , Sections 354 and 376 IPC – Discharge of accused by Sessions Judge without trial – FIR lodged by wife alleging her husband sexually abused her three years old daughter – Charge seemingly of incredulous nature and levelled by wife on account of her unhappy married life with husband – It would have devastating effect on development of personality of child – Accused discharged without trial.

 
 

SUPREME COURT OF INDIA

Kuldip Singh and S. Saghir Ahmad, JJ.

1996(3) R.C.R.(Criminal) 786

Indian Penal Code , Sections 376 IPC and 498A IPC – Rape – Compensation to prosecutrix – Accused developed sexual relations with prosecutrix and accepted her as wife before God he worshipped by putting vermilion (Sindur) on her forehead – Prosecutrix completely surrendered and accepted the accused as her husband – Prosecutrix became pregnant twice and aborted on insistence of accused – Accused deserted her after 5/6 years – Criminal complaint by wife – Supreme Court directed the accused to pay interim compensation of Rs. 1000/- to prosecutrix during pendency of criminal proceedings. 1995(1) Recent Criminal Reports 194 (SC) relied.

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BOMBAY HIGH COURT

Prakash D. Naik, J.

Decided: 2020

Indian Penal Code , 1860 Sections 376 (D), 377 and 120B r/w Section 34 Information Technology Act, 2000 Section 66 (E) Rape Applicant accused of raping woman at behest of her husband – Held, marriage between complainant and her husband performed in 2009 – In 2015 they started residing separately at Borivali – Date of first and second incident not mentioned in FIR – Alleged incidents occurred in 2015 and thereafter in 2016 and 2018 – FIR lodged on 23rd February, 2019 – Although applicant identified, it is not clear as to in which incident he is involved – Complaint lodged belatedly – Statement of one witness that husband of complainant made video call to him and his wife was also with him – Husband of complainant told him that he can see video of them having sexual relationship – Witness refused to watch video and both husband and wife were smiling – Thus, Prima facie, Section 376 may not be attracted against applicant – Since trial is pending, giving such finding not warranted – Applicant is in custody for a period of about one and half year – Applicant entitled for bail on executing personal bond in sum of Rs. 25,000/- with one or more sureties in like amount.

TRIPURA HIGH COURT

Mr. S. Talapatra and Mr. S.G. Chattopadhyay, JJ.

Decided: 2020

Indian Penal Code , 1860 Sections 376 (1) and 375 Cl. Thirdly, 109 – Appeal against conviction – Rape – Accused who claims victim as his wife allegedly kidnapped her and committed rape – Accused and victim known to each other – Victim stating that her parents took her to house of accused where first incident of rape occurred – No FIR lodged after first incident – Accused allegedly after one year from first incident with aid of victim’s father, kidnapped her from her husband ‘s house and committed rape with her – Unexplained delay of 10 days in lodging FIR of second incident – No evidence that accused kept victim in his house in fear of death or physical injury – No sign of resistance from victim’s side – Conviction, set aside.

PUNJAB AND HARYANA HIGH COURT

Jaishree Thakur, J.

2020(4) R.C.R.(Criminal) 482

Criminal Procedure Code, 1973, Section 482 – Indian Penal Code , 1860 Section 376 Quashing of FIR and subsequent proceedings in view of compromise between parties – Statement of complainant before JMIC, Gurdaspur that she solemnized marriage with petitioner an is residing with him as husband and wife at her matrimonial home-Out of the wedlock, a son born therefore, she does not want to proceed further with case against petitioner and she has no objection if FIR lodged by her against petitioner quashed by Court – Therefore, FIR and subsequent proceedings liable to be quashed.

UTTARAKHAND HIGH COURT

Sudhanshu Dhulia and Narayan Singh Dhanik, JJ.

Decided: 2020

Indian Penal Code , 1860 Sections 323 , 504 , 506 , 376 IPC and 417 Appeal against acquittal – Case of the prosecution that accused proposed marriage with the appellant and she accepted the same – Accused applied “Sindoor” on her forehead and they started living as husband and wife for all practical purposes – Rape on false pretext of marriage – Contention of prosecutrix that she consented to sex for more than one occasion but always it was on promise to marry – Prosecutrix a mature, and intelligent working mother bringing up her 11 years old son by working in share market – Merely by applying vermilion on forehead of a. woman, a marriage is not per-, formed – Accused was not having a bona fide intention of marrying the prosecutrix – Defence of accused that he always had intention to marry the prosecutrix but changed his mind when he saw her looking for eligible bachelors elsewhere – Evidence suggest the relationship was based on consent – Interference declined.

ALLAHABAD HIGH COURT

Sanjay Kumar Singh, J.

Decided: 2020

Criminal Procedure Code, 1973, Section 482 – Indian Penal Code , 1860 Sections 323 , 328 , 376 IPC and 120B Quash entire proceedings – Rape and making of video clip – Plea of false implication due to a family dispute between the applicant and opposite party – Further, allegation of wife swapping also levelled by the victim – Family dispute not proved – Motive shows that husband of victim has illicit relations with wife of accused, therefore, rape committed upon victim – Considering the nature of allegations the cognizable offence is made out – No merit to quash proceedings.

RAJASTHAN HIGH COURT

Sanjeev Prakash Sharma, J.

Decided: 2020

Indian Penal Code , 1860 Sections 323 , 341 , 376 IPC , 377 and 384 FIR under – Order passed by Additional Chief Metropolitan whereby he has returned file for fresh investigation to SHO after final report was submitted by Police – Petition against – Found from facts that it is a case of live in relationship having turned sour – There are grievances of complainant as against petitioner for having left and parted with her – Petitioner was already a married person having children and with full knowledge of his wife , he was having live in relationship with complainant for 11 years and even husband of complainant was having full knowledge about said aspect – A person, who himself consents to be part of such relationship, cannot turn around after same gets ugly to say that she has been forced to have sexual relation within meaning of Section 376 IPC or even within meaning of Section 377 IPC – Making allegations of rape and other offences with view to force other partner to continue to have live in relationship, would amount to abuse of criminal procedure – FIR or proceedings cannot be continued in such circumstances as no one can be forced to enter into live in relationship and it being not recognized under any Act, no one can force his/her partner to rejoin and come back into live in relationship once they separated – Held, a Magistrate although has a power to direct Investigating Agency to conduct fresh investigation but it would only exercise such power after applying mind to all aspects – Such an order cannot be passed in a mechanical fashion and discretion has to be exercised judiciously – Giving reasons is a sine-qua-non of any judicial order – Order impugned is set aside – Criminal writ petition is allowed.

MADRAS HIGH COURT

A.D. Jagadish Chandira, J.

Decided: 2020

Indian Penal Code , 1860 Sections 376 IPC and 506 (i) Information Technology Act, 2000 Section 66E Quashing of proceedings – Allegations of rape on false pretext of marriage – Later parties married each other – Now petitioner and the second respondent are living as husband and wife and they have compromised the matter – Possibility of conviction is also remote and bleak – Proceedings quashed.

MADHYA PRADESH HIGH COURT

Shri Rajeev Kumar Dubey, J.

Decided: 2020

Indian Penal Code , 1860 Sections 376 (2)(n), 376 (2)(f), 109 , 107 , 506 and 34 – Allegation that applicant abetted the co-accused to commit rape with prosecutrix – Prosecutrix wife of applicant/accused residing at her matrimonial house – Her husband went to Pune – She was sleeping in her room – Her brother-in-law (jeth) co-accused came inside her room and committed rape – She told applicant/her husband about incident – He asked her to allow him to do whatever he wanted whenever he come to her room – Co-accused again came and forcibly made physical relation with her – Nothing on record to show that failure of applicant to prevent his brother co-accused to commit rape upon prosecutrix (his wife ) was against the law or the applicant was under an obligation by law to prevent such incident – He asked her to allow co-accused to do whatever he wanted whenever he came to her room – Neither in the case diary statement of prosecutrix nor in the FIR, it was mentioned that Prosecutrix allowed the co-accused to make sexual intercourse with her against her will due to the pressure of the applicant – Act of applicant did not come within the expression ‘illegal omission’ also and accordingly he cannot be held liable for abetment of the offence – Proceedings pending against him quashed.

HIMACHAL PRADESH HIGH COURT

Vivek Singh Thakur, J.

Decided: 2020

Criminal Procedure Code, 1973 Section 482 Indian Penal Code , 1860 Section 376 Quashing of FIR and proceedings – Allegations of rape – Complainant/respondent No. 2 and accused/petitioner are now residing under one and same roof as husband and wife – It is a case where interest of victim is also involved and welfare of victim appears to be in closing criminal proceedings as she has proclaimed herself to be wife of accused – This case cannot be termed as a case subjecting the victim-complainant forcibly to illicit sexual intercourse – Interest of victim is not purely private in nature – Deposition of victim in Court of consonance with prosecution case would lead to landing her husband in jail and pushing her in pitch dark whereas retreating from her earlier may put her in unnecessary trouble – Therefore, interest of justice shall be served in quashing FIR as well as criminal proceedings – Petition disposed of.

MADRAS HIGH COURT

M. Nirmal Kumar, J.

Decided: 2019

Indian Penal Code , 1860 Section 376 (i) Rape Marriage took place between parties and they were lived as husband and wife – Occurrence took place in year 2010 – Offence of rape not attracted for a person being more then 16 years – As per evidence and materials, age of victim above sixteen years – Defacto complainant expressed her willingness to settled issue – She also admits about her marriage and thereafter, due to some misunderstanding, she obtained divorce by mutual consent and now living separately – Accused had physical relationship with complainant with her consent and thus, it is consensual act – Offence of rape not attracted and compromise entered between parties – Order of conviction and sentence set aside.

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