1. The Supreme Court of India stayed on 26th March 2025, the Allahabad High Court judgement of March 17th which concluded that mere grabbing of the breast of a minor victim or breaking the string of her payjama to bring down her lower garment are not sufficient to constitute an offence of attempt to rape. The Supreme Court took Suo motu cognizance of the judgement.
2. In the instant case, the alleged incident occurred on 10th November 2021 in the Kasganj District of UP. A minor girl was forcibly taken away beneath the culvert. She was grabbed by her breast. The accused broke the string of her pyjama. The girl screamed and shouted for help. The passerby came to her rescue and so both the accused fled away from the scene of crime.
3.The mother of the victim filed an application before the special judge, POCSO Act Kasganj District. The special judge registered the application. After recording the statements the special judge issued a summon to the accused. The accused filed a revision petition before the High Court, Allahabad against the summons order. The Allahabad High Court stayed the operation of summons.
What is the definition of rape?
1. According to section 63 of Bhartiya Nyay Samhita, a man is said to commit a rape if he -
Penetrates his penis to an extent into the vagina, mouth, urethra or anus of a woman or makes her do so with him or any other person or
Inserts to any extent any object or a part of the body into the vagina, urethra or anus of woman or makes her do so with him or any other person or
Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of her body or makes her do so with him or any other person or
Applies his mouth to the vagina, anus or urethra of a woman or makes her do so with him or any other person.
2.These above acts constitute rape under the following circumstances -
Against her will. It means that a sexual act has been performed in direct opposition to the woman’s conscious desire or intention. It implies active resistance, refusal and an absence of willingness on her part. For example, a man grabs a woman in a lonely place. He forces her to the ground and forcibly penetrates her vagina while she has been screaming and tries to push him away. This act of woman demonstrates her unwillingness and so her opposition is clear and against her will. During the medical examination, it may be possible that struggle marks or bruises may be found on the body of the victim.
Without her consent. It means absence of her voluntary agreement, no resistance is required, silence is not consent. For example, if a woman has been intoxicated and she is raped by penetration into her vagina either by penis or by objects, this consent is not consent because of her unconsiousness.
With consent when it is obtained under fear of death or hurt or injury to the person in which she is interested.
When consent is given under a misconception of fact, that is, when a woman believes the man is her husband who is not actually her husband.
When the woman is unable to understand the nature and consequences of the act due to intoxication, unsoundness of mind or any other reason.
With or without consent if a woman is under 18 years of age.
Exception :
A medical procedure or intervention does not constitute rape.
Sexual intercourse or sexual acts by a man with his own wife where the wife is not under 18 years of age is not rape. For example, if a man forces a 20 year old wife to have sexual intercourse against her will. This would not constitute a rape.
3.Thus, the definition of rape of India is gender specific. It is not gender neutral. It does not recognise male or transgender as the victims of rape. It does not account for female perpetrators.
4.The second feature of the definition of rape is that, there must be some kind of penetration whether by penis or any body part or an object or manipulation. Thus, non-penetrative acts do not qualify as rape. But it may fall under sexual harassment or assault.
5.The third feature is consent. It must be free, voluntary and informed. Any coercion, deception, misrepresentation or incapacity negate consent.
6.The fourth feature is age. If a girl is below 18 years of age, her consent is illegal and so it would construte as rape.
7.The fifth feature is the enhancement of punishment for gang rape of a woman or a minor girl below 12 years and the punishment extends to not less than 20 years which may extend to life and a fine.
8. Similarly, rape of a woman by a police officer, a public servant under his custody, security forces, incharge of the management of jail or remand home, hospital, a teacher, a guardian or a relative of a woman or a person under whose control or dominance a woman is raped have to be awarded enhanced punishment extending to imprisonment for life. In case, the death is caused to the raped woman, the accused would be punished with the rigorous punishment which shall not be less than 20 years and which may extend to imprisonment for life or with death.
What is the attempted rape?
1. Attempted rape means that a person takes all steps towards raping a woman but the act is not complete due to interruption, resistance or help extended by passerby after hearing the screaming or shouting of the victim.
2. Section 62 explicitly states that whoever attempts to commit an offence punishable by this samhita with imprisonment for life or imprisonment or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this samhita for the punishment for such attempt, be punished with imprisonment of any description provided for the offence for a term which may extend to one half of the imprisonment for life or as the case may be, one half of the longest term of imprisonment provided for that offence or with such fine as provided for the offence or with both. Thus, offence of rape shall be punished with imprisonment of either description for a term not less than one half of the minimum punishment prescribed for rape and up to one half of the maximum punishment or with fine or both. Thus, an attempt to rape carries a punishment for not less than five years or up to seven years plus a fine.
3. To constitute an attempt to rape, three elements must be proved :
Intentions - The accused must have the clear intent to commit rape.
The accused must perform an overt act that goes beyond near preparation and directly moves towards committing rape.
The rape must not be completed due to certain external factors like escape of the victim girl/woman, interuption by woman/girl, voluntary withdrawal of the accused from the scene of crime without accomplishing the act or help by passerby. For example, a man drags a woman into a lonely place, tears her clothes and under garments and attempts to penetrate her vagina with his penis. She screams and shouts. Passerby people intervene and extend help to the victim woman. Thus, the intention of the rape is clear by the act of dragging or tearing clothes of victim. The Act goes beyond preparation. The rape is incomplete due to intruption.
Secondly, a woman is lured by a man to his house and then he locks her inside the room and forces her to lie down on the bed. He starts unclothing her. The woman escapes from the window. This is a clear cut case of attempted rape.
4. It should be noted that mere preparation to commit rape does not amount to punishable offence. The court uses the proximity rule to distinguish attempt from preparation. In the State of Maharashtra vs Mohammad Yakub (1980), attempt begins where preparation ends. In order to prove the attempt , the prosecution must establish that it has gone beyond the stage of preparation.
Moreover, under section 120 of the BSA (Bhartiya Sakhya Adhiniyam), the court will presume that the victim did not consent if she tells the court that she did not consent to the sexual intercourse. Thus, the accused has the burden of proof to prove that he is innocent by providing credible evidence like prior relationship or explicit agreement to rebut the presumption.
How the investigation of rape is conducted?
1. When a rape incident occurs, either the rape victim or her relative or someone on her behalf can lodge FIR under section 173 of BNSS (Bhartiya Nyay Suraksha Samhita).
If the crime has occurred outside the jurisdiction of a police station, an FIR under zero can be filed at the police station and then subsequently is transferred to the police station having the appropriate jurisdiction.
The identity of the victim must be protected under section 72 of the BNS, thereby, prohibiting public disclosure of her name or details. The investigating officer assigns a unique number to the victim and begins investigation by taking her statement and witnesses (if any) and proceeds to the scene of crime.
Since, the rape is a cognizable offence, its non-registration would attract disciplinary proceedings against the erring police officer. The investigating officer inspect the scene of crime, collect physical evidence like semen, blood, hair, clothing and take photographs of the scene of crime depicting the sign of struggle (if any). The visit of the scene of the crime must be done promptly to preserve evidence. Any delay would cause disappearance of evidence. The investigating officer must accompany a forensic expert for proper collection, sealing and labelling of evidence in tamper proof containers.
The victim must be taken to a registered medical practitioner for medical examination within 24 hours of the registration of FIR. However, the consent of the victim must be taken before examining her body. When consent is obtained, the doctor would examine the private part, injuries (if any), traces of semen, signs of struggle like bruises or scratches on her body. The doctor would also collect samples like vaginal swabs, nail scrapings and blood for intoxication tests. It is necessary that a female doctor conducts the above examination. It should be noted that the invasive two finger test has been prohibited to determine virginity or sexual history of the victim by the Supreme Court in the case of Lillu vs State of Haryana in 2013 as it violates the dignity of woman/girl and is irrelevant to consent.
The female police officer must be present during the examination of the victim girl/woman. The investigating officer collects clothes, weapons and objects used in the crime. He also collects CCTV footage, call records of victims and accused and relevant messages.
If the accused is identified , the police will arrest him without a warrant. The accused is medically examined to collect evidence like semen, DNA, injuries from resistance, the medical examination can be done forcibly if he refuses. The investigating officer records the statement of the accused. But confession made by the accused to a police officer is not admissible in the court of law unless recorded before a magistrate under section 186 of BNSS.
Once the investigation is completed, the charge sheet is prepared, supporting the allegations and it is produced in the court of jurisdiction within 90 days of the arrest of the accused where the offence is punishable with death, imprisonment for life or imprisonment for a term of ten years and in other cases 60 days. On the expiry of the said period of 90 days or 60 days as the case may be the accused person shall be released on failure if he is prepared to furnish bail.
The magistrate reviews the charge sheet and frames charges under section 246 of the BNSS. The case is then committed to a session court. According to section 193 (3) (1) of BNSS, the investigation must be completed within two months for rape cases involving minors. According to section 24 (3) of BNSS, a female police officer should preferably investigate rape cases ensuring insensitivity.
Why convictions in rape is so poor in India?
1. The conviction rate for rape cases in India hovers around 27-28% according to NCRB in 2018-2022. The rate of conviction is poor in India when compared with the UK (60.2%), Canada (42%). This is because several factors :
The judge to population ratio in India is 21 per million against 120 per million in the United States.
Prolonged trials in India cause evidence degradation, witness fatigue and victims turning hostile under pressure.
Police in India is very much overburdened so much so that only 151 police personnel are available for 1 lakh people according to NCRB, 2021 compared to 225 policemen available per one lakh in the UK.
India has fewer forensic labs causing delays in DNA analysis and examination of physical and biological evidence.
Because of cultural stigma, most of the rape victims either withdraw complaints or become hostile during trial under pressure from the powerful family of the accused. This results into 90% of rape acquitals on account of reluctance of rape victim during trials. Moreover, witnesses also turn hostile during trial under pressure from the accused party. Since, most of the rape cases involve close relatives, the pressure is mounted upon the rape victim resulting into her being hostile during trial.
Delayed reporting of the rape cases further destroys evidence.
Under section 120 of BSA, it is presumed that there is no consent if the victim has not consented but this lack of consent is not absolute in the court for want of corroborative evidence from struggle marks on the scene of crime, injuries on the body of the victim and statements of witnesses.
How convictions in rape can be raised in India?
1. Improving sensitisation of police personnels with regard to rape cases.
2. Increasing forensic science laboratories (FSLs) from the present 40 to 100 equipping them with DNA sequencing tools and enforcing a 30 day report deadline.
3. Ensuring the completion of trial in rape cases within 60 days by activating all fast track special courts.
4. Increasing the number of judges from 21 to 50 per million.
5. Providing mobile medical units in rural areas.
6. Offering legal aid, counselling and witness protection in every district.
7. Swift compensation to victim/girl/woman.
8. Installation of CCTV networks in cities and kasba.
9. Launching awareness campaigns to educate youths.
10. Formation of woman safety committees which are to be linked to police helplines.
11. Swift disposal of cases in the court because strong justice delivery reduces the incidence of the rape cases.
Ways forward
Systematic modernisation of police infrastructure, scaling up of fast track courts, Increasing forensic capacity, strengthening victim support, shifting societal attitudes with regard to rape cases, liveraging technology, data collections and crime mapping, ensuring witness protection and forming woman safety committees at work places and otherwise would go a long way in increasing the conviction rates in rape cases and thereby, mitigating the occurrances of rape in India.
Conclusion
It has been observed that most of the rape cases in India are committed by close relatives, guardians, friends and acquaintances. The new provision under section 64 provides for enhanced punishments for accused who are a relative or guardian or a teacher or a person in a position of trust and authority or in a position of control or dominance over a woman. Similarly, under section 65, the rape on a minor girl attracts enhanced punishment which may extend to life imprisonment. Similarly, under section 69, sexual intercourse by making a false promise to marry a woman has been clearly described in the BNS and provides for 10 years punishment.
To sum up, the new provisions from section 63 to 72 under BNS would be very much effective in controlling and mitigating the incidences of rape cases in India.
