Professional Documents
Culture Documents
PROJECT ON
DEATH PENALTY FOR SEXUAL OFFENCES
– A CRITICAL STUDY
IN
CRIMINAL LAW
BY
ANOOP KUMAR
ROLL NO.
11
SUBMITTED TO
MR. K. A. PANDEY
DR. RAM MANOHAR LOHIYA NATIONAL LAW
UNIVERSITY
LUCKNOW
“Imposition of appropriate punishment is the manner in which the courts
respond to the society’s cry for justice against the criminals. Justice demands
that courts should impose punishment befitting the crime so that the courts
reflect public abhorrence of the crime. The courts must not only keep in view
the rights of the criminal but also the rights of the victim of crime and the
society at large while considering imposition of appropriate punishment.”
Dr. Anand, J. in Dhananjoy Chatterjee v. State of W.B1.
1 (1994) 2 SCC 220 : 1994 SCC (Cri) 358.
Table of Contents
PREFACE
TABLE OF CASES
Introduction
Consent
Forms of Sex Offending
Provisions under the Indian Penal Code
Rape
Against the Will of the Woman
Without the Consent of the Woman
Punishment for Rape
Changes brought by the Amendment
Approaches involved
Rape and Murder
Death Sentence for Rape Ultimate Solution or not
Other Sexual Offences
Death Penalty for Sexual Offences
Preface
The aim of this project is to introduce the reader to the subject of sexual offending and
sexual offenders, to look into the legal measures taken by the Indian law to check such
offences, and to look into the applicability of death penalty for such offences.
The stand of society against such offences and the policy to combat such
offences has been a rapidly moving terrain over last few years. Attitudes towards
sexual offending have been changing.
The project also looks at the policy and legal frameworks, which have been
developed both to bring offenders to justice and to increase protection from abusers.
The primary focus of the project is to look into the applicability of death penalty
for sexual offending in light of law, policy and practice in India with reference to the
provisions under the Indian Penal Code and the decisions of the courts in several cases.
Thanks are due to staff at the Dr. RMLNLU library, the faculty of the Criminal
Law in Dr. RMLNLU, as well as to a number of colleagues who have directly or
indirectly given pointers to how this project should proceed. Thanks to my father, who
provided me with case materials and his invaluable blessings.
Table of Cases
Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580
Dhananjoy Chatterjee v. State of W.B(1994) 2 SCC 220 : 1994 SCC (Cri) 358.
Kamta Tiwari v. State of M.P, (1996) 6 SCC 250 : 1996 SCC (Cri) 1298
Machhi Singh v. State of Punjab(1983) 3 SCC 470: 1983 SCC (Cri) 681
Meet Singh v. State of Punjab 1980 Cr. LJ 1802 (SC).
Omkar Prasad Verma v. State of Madhya, AIR 2007 SC 1381.
Queen v. Flattery1877 QBD 410
R v. R (Rape: marital exemption) [1992] 1 A C 599.
State of Punjab v. Gurmit Singh AIR 1996 SC 1393
State of Karnataka v. Krishnappa, 2000 AIR SCW 1040, 2000 Cr. LJ 1793
Surendra Pal Shivbalakpal v. State of Gujarat(2005) 3 SCC 127
TK Gopal alias Gopi v. State of Karnataka 2000 Cr. LJ 2286 (SC).
Tukaram v. State of Maharastra AIR 1979 SC 185.
Udai v. State of Karnataka2003 Cri. LJ 1539 SC.
.
.
Introduction
Sexual offending is often considered as somehow inherently different from
other forms of offending. Sexual offenders are often termed as ‘monsters’,
‘beasts’ and ‘sex friends’ by the society. The sex crimes form the mainstay of
the tabloid and newspapers.
The sex offending itself takes many forms: from the man who indecently
exposes himself, to the anonymous stranger who abducts, assaults and kills, to
the man who possesses illegal pornography; from the man who offends only
against his own children, to the man who find employment in children's homes
or schools just to give them access to children and opportunities to offend.
The law may tell us in detail what is a sexual offence. In the perception
of society it may be termed as the act of inducement or coercion of adults and
children into sexual activities to which they have not consented. The absence
of a true consent to sexual activities is the overarching feature of sexual
offending. Amongst all the sexual offences, the offence of rape is the most
inhumane act that can shake the soul of the whole society.
To deal with such inhumane acts, the society demands for the imposition
of the death penalty.
Consent
The common theme to nearly all sexual offending is the lack of real consent,
whether by age, by coercion or from consent being given to a 'prohibited
relationship'. Poverty and economic imperatives serve as some of such factors
that turn women (and men) to prostitution.
Children and young people below the age of 'age of consent' may be
engaged in unlawful sexual intercourse either with or without their consent.
Such offending may be classified into 'intrafamilial' and 'extrafamilial'.
Within a family it will probably be incestuous and outside of the family it is
sometimes referred to as the strangerdanger. Children and young people also
attend various institutions outside the family, such as the nurseries, schools,
youth clubs and sporting clubs. The extent of sex offending against children in
all of these settings has been discovered in the last 10 or 20 years.
When the children and young people are coerced into prostitution
against their will and it is referred to as 'trafficking' when it involves moving
victims from one country to another.
Common law rejects the idea that marriage means a man has continual
consent from his wife for sexual activity at any time2.
Forms of sex offending
The definition of sex offending and its forms vary over time and place. An
existing offence may be decriminalised at the stroke of a statute (e.g.
homosexual activities in England and Wales in 1967), and existing behaviour
may be brought under the statutory provisions (e.g. male rape in 1994). What
is a sex offence in one country may not be in another. There are a number of
activities, which have been brought under the purview of law. Majority of
these take into consideration the matter of consent. Under the IPC, the scope
of the sexual offences was widened by the Amendment Act of 1983.
2 R v. R (Rape: marital exemption) [1992] 1 A C 599
Provisions under the Indian Penal Code, 1860:
Under the Code, Sexual Offences has been defined under the section 375, 376,
376A, 376B, 376C and 376D. Section 375 deals with the offence of rape,
which has been defined as follows:
RAPE: The offence of rape has been defined under the section 375 of the IPC.
In State of Karnataka v. Krishnappa3, the apex court has held that rape is not
merely a physical assault but also an offence which is destructive to the whole
personality of the victim of the crime. Such cases need to be dealt with utmost
care and sensitivity.
375. Rape.A man 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.
3 2000 AIR SCW 1040, 2000 Cr. LJ 1793.
Sixthly. With or without her consent, when she is under sixteen years of age.
Thus, mens rea and actus reus are the essential ingredients of the offence of
rape. The crux of rape under section 375, IPC is sexual intercourse, by a man
with a woman against her will and without her consent. The provisions of of
fence of rape do not hold woman guilty of rape.
Amongst all the sexual offences that have been prohibited by the IPC,
rape is the most atrocious of all the sexual offences. The offence of rape is
considered to be the one which affects not only the rape victim but the society
also.
Against the Will of the Woman:
To constitute the offence of rape, there must be a sexual intercourse by a man
with a woman against her will. There can be a distinction drawn between the
‘act done against the will’ and ‘act done without the consent’. Any act done
‘against the will’ is done ‘without the consent’. But the act done ‘without the
consent’ is not ‘against the will’.
In State of Punjab v. Gurmit Singh4, three accused, after abducting the
prosecutrix, forced her to have a sexual intercourse with the accused. The
Supreme Court held that the act was done against the will of the prosecutrix,
hence amounted to rape within the meaning of the section 375.
Without Consent of the Woman:
Consent obtained under the influence of mistake, fraud, or misrepresentation,
does not constitute consent. In Queen v. Flattery5, the victim was in ill health
and was advised to go for a surgical operation. The victim consented to such
act. Under the pretence of performing the surgical operations, the accused had
4 AIR 1996 SC 1393.
5 1877 QBD 410.
sexual intercourse with the victim. The court held that such consent did not
amount to be a valid consent.
In Tukaram v. State of Maharastra6, popularly known as Mathura rape case,
the apex court delivered a controversial decision that the victim’s failure to
appeal to companions and her act of meekly following the accused and
allowing him to satisfy his lust amounts to a valid consent for the sexual
intercourse. The decision led to the amendments in the provisions of the
Indian Penal Code7.
In Udai v. State of Karnataka8, the Court held that in a case where the
accused made promise of marriage to the prosecutrix and the latter relying on
that promise gives her consent to have sexual intercourse to the accused; the
prosecutrix had sufficient intelligence to understand the nature of the act she
was consenting to. The appellant was not held to be liable for conviction.
Punishment for Rape: The Supreme Court in State of Punjab v. Gurmit
Singh9, observed:
“..of late, crime against women in general and rape on particular is on the
increase. It is an irony that while we are celebrating woman’s rights in all
spheres, we show little or no concern for her honour… A murder destroys
the physical body of his victim , a rapist degrades the very soul of the
helpless female….”
Section 376 of the IPC deals with the punishment for the offence of rape.
6 AIR 1979 SC 185.
7 Criminal Law (Amendment) Act, 1983.
8 2003 Cri. LJ 1539 SC.
9 1996 2 SCC 384, AIR 1996 SC 1393, 1996 Cr. LJ 1728.
376. Punishment for rape10.
(1) Whoever, except in the cases provided for by subsection (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 ex
tend to ten years and shall also be liable to fine unless the woman 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.
(1) Whoever:
(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 is 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 com
mits rape on a woman is 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 po
10 Subs. by Act 43 of 1983, sec. 3, for sec. 376 (w.e.f. 25121983).
sition 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 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. The sentencing policy for the offence of rape has been sub
ject to several conditions and circumstances. With the Amendment of 1983, a
drastic change was brought about in the punishment for rape. The courts are
responsible to consider all the relevant facts and circumstances before award
ing the sentence. The factors that the accused was illiterate citizen, belonging
to a weaker section of the society, that he was in the drunken condition in
which he committed rape would not be taken into consideration by the court.
In State of Karnataka v. Raju11, the apex court refused to allow the plea the
age and illiteracy of the accused, and set aside the decision of the High Court
of reducing the sentence.
11 MANU/SC/3800/2007
Changes brought by the Amendment:
The amendment of 1983 provides for a more severe punishment for the of
fence of rape. The minimum punishment being the sentence of imprisonment
of 7 years that may extend to the life imprisonment or imprisonment for a term
of 10 years and also fine.
Approaches involved:
Before awarding punishment to the offenders three approaches come into pic
ture. The first approach, called the punitive approach, considers the criminal to
be worthy of strict punishments, as he becomes a threat for the society. The
second approach called the therapeutic approach considers the offender to be a
sick person emphesises on his reformation. The third one being the punitive
approach pleads for eliminating those conditions which were for crime causa
tion12. The therapeutic approach satisfies the want of justice as well as pre
serves the rights of the criminal.
Though the sexual offences are considered to be the most barbaric and
brutal act, in several states of the USA, the emphasis was laid on psychothera
pic treatment of the offender while he was under detention. In such cases they
are not released till they are cured. Though such provisions do not exist in In
dia, the efforts are being made by the reformists to treat the offenders psycho
logically so that they may not repeat the same offence.
Rape and murder:
For the applicability of the death penalty for the rape, the evidences have to be
in conformity with the conditions of ‘rare of the rarest case’. Vagueness of the
doctrine was removed by the Supreme Court in Machhi Singh v. State of Pun
12 TK Gopal alias Gopi v. State of Karnataka 2000 Cr. LJ 2286 (SC).
jab13. The Court has invoked the application of death sentences subject to sev
eral circumstances. But this has not been made the applicable in all the cases.
In Surendra Pal Shivbalakpal v. State of Gujarat14 the appellant, Shivbalak
pal was staying in one of the rooms of a building owned by complainant,
Kavalpati, a widow having three children. On 1192002 at about 10 p.m. he
came to her and offered Rs 150 for sexual favours. She got angry and asked
him to go away. During the night, she along with her two minor daughters
was sleeping on a cot lying outside the room. During the night for some time,
he went inside and at 1 a.m. she came back and found daughter Savitri miss
ing. The dead body of Savitri was found floating on the water and was recov
ered from the pond. The postmortem revealed a number of injuries on the
body of the deceased and hymen was completely ruptured. The trial court
found the appellant guilty of the offence of rape. He was sentenced to death
and it was confirmed by the High Court. The Supreme Court also agreed
about the finding of guilt but the sentence of death was commuted to life im
prisonment on the ground that the case did not belong to the rarest of rare cas
es. The Court observed:
“The appellant was aged 36 years at the time of the occurrence and
there is no evidence that the appellant had been involved in any other
criminal case previously and the appellant was a migrant labourer
from U.P. and was living in impecunious circumstances and it cannot
be said that he would be a menace to society in future and…. We do
not think that the death penalty was warranted in this case.”
The Court held that circumstances were sufficient to hold the accused
guilty and convicted him for the offence of rape and since the crime fell in
the category of the rarest of rare cases, death sentence was imposed.
However, the High Court acquitted the accused. The Supreme Court re
13 (1983) 3 SCC 470: 1983 SCC (Cri) 681.
14 (2005) 3 SCC 127.
versed the order of the High Court and restored the order of the trial court.
The Court says that where a case is based on circumstantial evidence, the
inference of guilt can be justified only when all incriminating facts and cir
cumstances are found to be incompatible with the innocence of the accused
or any other person15. The Court referred to the guidelines laid down in
Bachan Singh16 and Machhi Singh17 to judge whether case belongs to the
rarest of rare category for award of death penalty. It pointed out the test for
determining the rarest of rare cases, which is as follows:
• There must be something uncommon about the crime which renders
sentence of imprisonment for life inadequate and calls for a death
sentence.
• The circumstances of the crime such that there is no alternative but
to impose death sentence even after according maximum weight age
to the mitigating circumstances which speak in favour of the offend
er.
Hence, the Supreme Court held that the case falls in the “rarest of rare cat
egory”, restoring the death sentence, set aside the judgment of the High Court.
In this connection, Arijit Pasayat, J. observed:
“The principle of proportion between crime and punishment is a principle
of just deserts that serves as the foundation of every criminal sentence that is
justifiable. As a principle of criminal justice it is hardly less familiar or less
important than the principle that only the guilty ought to be punished. Indeed,
the requirement that punishment not be disproportionately great, which is a
corollary of just deserts, is dictated by the same principle that does not allow
punishment of the innocent, for any punishment in excess of what is deserved
for the criminal conduct is punishment without guilt.”
15 Hukam Singh v. State of Rajasthan, (1977) 2 SCC 99 : 1977 SCC (Cri) 250.
16 Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580.
17 Machhi Singh v. State of Punjab, (1983) 3 SCC 470 : 1983 SCC (Cri) 681.
The judgment delivered by the Supreme Court in the case of Dhananjoy
Chatterjee v. State of W.B18, which involved rape cum murder is laudable. The
trial court, the High Court and the Supreme Court agreed it to be a fit case for
imposition of death penalty.
The Supreme Court dismissed the appeal and confirmed death sentence award
ed by the trial court and confirmed by the High Court. The barbaric act of the
accused shaking the faith of society, the savage nature of the crime, shocking
judicial conscience, absence of explanatory or mitigating circumstance led the
Court to bring the case within the “rarest of rare cases”. Dr. Anand, J. speaking
for the Court observed:
“Imposition of appropriate punishment is the manner in which the courts re
spond to the society’s cry for justice against the criminals. Justice demands
that courts should impose punishment befitting the crime so that the courts
reflect public abhorrence of the crime. The courts must not only keep in
view the rights of the criminal but also the rights of the victim of crime and
the society at large while considering imposition of appropriate
punishment.”
Death Sentence for Rape Ultimate Solution or not
18 (1994) 2 SCC 220 : 1994 SCC (Cri) 358.
In the wake of increasing instances of rape, the society as well the Parliament
have opined the Section 376 of the IPC reveals that the punishment for the of
fence of rape extends from the imprisonment for a term of seven years, at mini
mum, to life imprisonment. The court has observed that19:
“The motivation of the perpetrator, the vulnerability of the victim, the enormity
of the crime, the execution thereof persuade us to hold that this is a ‘rarest of
rare’ cases where the sentence of death is eminently desirable not only to deter
others from committing such atrocious crimes but also to give emphatic expres
sion to society’s abhorrence of such crimes.”
Death penalty for the offence of rape can’t be the ultimate solution
• Punishments for rape are deterrent enough: Section 376 of the IPC lays down
strict punishments for the offence of rape. A person committing the offence of
rape is subject to the rigorous imprisonment which may extend up to the life
imprisonment. These provisions make the offender think many a times before
committing the offence of rape.
• Chances of murders followed by rape may increase: If the death penalty is
imposed for the offences of rape, the chances of death followed by rape may
increase. The reason that invalidates the provision of the death penalty for all
the offences of rape is that the offender of such offence may kill the victim in
order to save himself from the death penalty.
19 Kamta Tiwari v. State of M.P, (1996) 6 SCC 250 : 1996 SCC (Cri) 1298.
The victim of rape may seek legal remedy so that the offender may get
the death penalty for his brutal act. This makes the offender kill the victim so
that she may not get the offender booked under the law, which provides for
death penalty for such offences.
• The sentencing policy depends on the courts: The courts impose the death
penalty only for the offences that fall under the category of the ‘rare of the
rarest’. Even if the death penalty is imposed for all the offences of rape, it is the
courts that interpret the provisions to be fit for the application in each and
every cases of rape.
• Circumstances may differ: It would be highly unjust on the part of the court to
impart the death penalty to the accused without taking note of the
circumstances. Generally the courts impose sentences after taking into
consideration the facts and circumstances and if the court finds the special
reasons it may take into account the same before awarding the sentence20.
Before awarding the death penalty the court must take into account the other
factors like illiteracy, age, poverty, and likes.
OTHER SEXUAL OFFENCES
Apart from rape, there are other sexual offences which have been defined under the
provisions of the IPC.
Section 376A. Intercourse by a man with his wife during separation.
20 Meet Singh v. State of Punjab 1980 Cr. LJ 1802 (SC).
Whoever has sexual intercourse with his wife, who is living separately from
him under a decree of separation or under any custom or usage without her
consent shall be punished with imprisonment of either description for a term
which may extend to two years and shall also be liable to fine.
Section 376B. Intercourse by public servant with woman is his custody.
Whoever, being a public servant, takes advantage of his official position and in
duces or seduces any woman, who is in his custody as such public servant or in
the custody of a public servant subordinate to him, to have sexual intercourse
with him, such sexual intercourse not amounting to the offence of rape, shall be
punished with imprisonment of either description for a term which may extend to
five years and shall also be liable to fine.
Section 376C. Intercourse by superintendent of jail, remand home, etc.
Whoever, being the superintendent or manager 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 takes advantage of his official position and in
duces or seduces any female inmate of such jail, remand home, place or institu
tion to have sexual intercourse with him, such sexual intercourse not amounting
to the offence of rape, shall be punished with imprisonment of either description
for a term which may extend to five years and shall also be liable to fine.
Section 376D. Intercourse by any member of the management or staff of a
hospital with any woman in that hospital.
Whoever, being on the management of a hospital or being on the staff of a hospi
tal takes advantage of his position and has sexual intercourse with any woman in
that hospital, such sexual intercourse not amounting to the offence of rape, shall
be punished with imprisonment of either description for a term which may ex
tend to five years and shall also be liable to fine.
In Omkar Prasad Verma v. State of Madhya21, Pradesh the apex court observed that:
21 AIR 2007 SC 1381.
"Sections 376A to 376D of the Indian Penal Code, stricto sensu do not deal with
rape but sexual intercourse in those cases where consent has been obtained by
taking undue advantage of the position as public servant."
Appellant was a teacher in a government school. Vimala, was a student reading in the
said school. She alleged that the appellant had sexual intercourse with her on putting
her to fear that she would be failed in her classes. The Apex court observed that the in
gredients of the offence under Section 376B of the Indian Penal Code were not satis
fied in the instant case.
Death Penalty for the Sexual Offences:
Amongst all the sexual offences Rape is the most heinous offence. Other kinds
of sexual offences may be done away with by imposing severe sentences like
life imprisonment and even simple imprisonment. But the offence of rape is
most barbaric and against the norms of the society. It is the reason which
compels the society and the legislature to impose severe punishment like the
death penalty for such offences. But the death penalty for all rape cases is not
feasible as the circumstances differ from case to case.
Death penalty for the offence of rape followed by the murder of victim
is a right solution to deal with such offences which are harmful to the society.
REFERENCES
URLs
• http://www.vakilno1.com/bareacts/IndianPenalCode/indianpenalcode2.htm
• http://www.ebcindia.com/practicallawyer/index.php?option=com_content&task=
view&id = 6647&Itemid=99999999
• http://www.manupatra.com/Pers/Personalized.asp
Books
• Mishra, S. N., Indian Penal Code, 14th ed. (2006), Central Law Publications, Alld.
st
• Ratan Lal & Dhiraj Lal, the Indian Penal Code, 31 enlarged ed. (2006), Wadhwa &
Company, Nagpur.
• Sarvaria, S.K., R.A. Nelson's Indian Penal Code, Vol. 3, 9th ed., (2003) , Lexis Nexis,
Butterworths, New Delhi.