India : Essential ingredients of rape

Insertion of a new section 114-A : after section 114 of Indian evidence act the following section shall be inserted namely 114 – A. Presumption as to absence of consent in certain prosecutions for rape : in a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of subsection (2) of section 376 of the Indian penal code, where sexual intercourse by the accused is proved and question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.

Chapter -4 – Essential ingredients of the offence of rape.

Essential ingredients of the offence of rape

the chapter describes the main elements which are necessary to constitute the offence of rape according to section 375 of the Indian penal code. This aspect of the PCs is of great importance from professional point of view. In the trial of offence of rape it is necessary for the prosecution to prove at least one of the essential ingredients so that the wrong is dealt with under the section 375 of the Indian penal code. If it is not covered by the provisions, then sexual intercourse with whomsoever it may be, is not punishable. Although the phraseology used in section 375 of the Indian penal code is very simple, but at the same time there is certain amount of overlapping and ambiguity. The judicial decisions both English and Indian have clarified the position. Hence a detailed study of the same has been made in this chapter. The English law on the subject of rape also has been discussed with reference to the provisions of the offences against Persons act.

Essential Ingredients Of The Offence Of Rape

the offence of rape is said to have committed when

1) man has sexual intercourse with a woman, not being his wife2) in any other circumstances enumerator in the sixth clause of the section

the only exception in this section is that sexual intercourse by a man with his wife, if she is not under 15 years of age is not rape.

Man : the Wardman denotes a male human being of any age. Allow relating to in fancy in connection with criminal liability is laid down in sections 82 and 83 of IPC and nowhere else. A child under seven years of age is immune from criminal liability. Accordingly a boy under seven years of age is held totally irresponsible for the offence of rape like any other criminal liability. If the child is about seven and under 12 years of age his criminal liability depends upon his understanding being sufficiently mature to judge the nature and consequences of his conduct on that occasion. But a

child not under 12 years of age has no such immunity and the question of his criminal liability for the offence of rape must be decided as in the case of an adult.

In England the rule at common law is that a boy under 14 years of age is under a physical incapacity to commit offence of rape, though he may be convicted of indecent assault and maybe a principal in the second degree of rape. This is presumption juris de jure and judges are seldom inclined to receive evidence to show that a particular prisoner was in fact capable of committing the offence of rape.