The crime of gang rape

The substantive charge of gang rape is codified in § 376 of the Indian Penal Code. The statute does not require that each participant engage in rape; provided that at least one person commits rape in furtherance of a common intention then the statutory requirements for gang rape are satisfied.[1]

The statutory definition of rape is satisfied if a man has sexual intercourse with a women[2] under one of six conditions: (1) against her will, (2) without her consent, (3) with her consent, having obtained her consent through threats of injury or death, (4) with her consent, having obtained her consent through her mistaken belief that he is her husband, (5) with her consent, at a time when she is unable to legally consent through unsoundness of mind or intoxication, (6) with or without her consent, when she is under the age of sixteen.[3] It is not necessary for the intercourse to be completed; mere penetration is the sine qua non of the crime.[4]

Direct evidence of rape is often difficult to obtain and the only witness to the crime is often the victim. Therefore it is allowable for a conviction to be sustained on the sole testimony of the victim.[5] Although the Indian Evidence Act (IEA) contains rules restricting the use of evidence of bad character of the accused,[6] the IEA is silent on the issue of the admissibility of evidence of bad character of the witness or victim. Nevertheless, the Supreme Court has ruled that the character of the victim in rape trials is not determinative as to the guilt of the accused.[7]

In addition to relaxed rules of evidence relating to rape cases the Supreme Court has also laid down broad rules relating to assistance for rape.[8] During the pendency of the case the court has jurisdiction to award interim compensation; this power has been interpreted by the Supreme Court from the basic jurisdiction to award compensation at the final stage of judgment.[9] Within six months of a final judgment the Supreme Court has directed that issuing court prepare a scheme for assisting the rape victim.[10] The Supreme Court has advocated that courts provide for legal assistance, preservation of anonymity and compensation to the victim.[11] On conviction this compensation is to be paid by the offender.[12] Regardless of whether or not a conviction is obtained, the Criminal Injuries Compensation Board is also authorized to provide compensation.[13]

[1] Indian Penal Code § 376 Explanation 1 [IPC]; Pramod Mahto v. State of Bihar AIR 1989 SC 1475: 1989 Cr LJ; see also Justice M.R. Mallick, Criminal Manual (Criminal Major Acts) Indian Penal Code (45 of 1860), p. 171 (2009); see supra discussion of IPC § 34.

[2] The IPC doesn’t explicitly contemplate the rape of one man by another, the rape of a man by a woman, or the rape of one women by another.

[3] IPC § 375.

[4] Id.; State of U.P. v. Babulnath (1994) 6 SCC 29; Aman Kumar v. State of Haryana AIR 2004 SC 1497: (2004) 4 SCC 379: 204 Cr LJ 1399; Koppula Venkat Rao v. State of Andhara Pradesh AIR 2004 SC 1874: (2004) 3 SCC 602: 2004 Cr LJ 1804.

[5] Madhi Ram v. State of U.P. AIR 1973 SC 469: (1973) 1 SCC 533; Sudhansu Sekhar Sahoo v. State of Orissa 2003 Cr LJ 4920 (SC).

[6] Indian Evidence Act § 54. The IEA is identical to the Federal Rules of Evidence in United States courts in this respect. Evidence of bad character is inadmissible until the defendant introduces evidence of good character. At that time negative character evidence is admissible during cross examination.

[7] State of U.P. v. Pappu alias Yunnus 2005 Cr LJ 331 (SC) (the only question at issue is whether the accused did commit rape on the victim on the occasion complained of).

[8] See Justice M.R. Mallick, Criminal Manual (Criminal Major Acts) Indian Penal Code (45 of 1860), p. 171 (2009).

[9] Domestic Working Women’s Forum v. Union of India (1995) 1 SCC 14: 1995 SCC (Cri) 7; see also Bodhisattwa Gautam v. Subhra Chakraborty AIR 1996 SC 922: (1996) 1 SCC 490: 1996 SCC (Cri) 133.

[10] Domestic Working Women’s Forum v. Union of India (1995) 1 SCC 14: 1995 SCC (Cri) 7.

[11] Id.

[12] Id.

[13] Id.

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