Rape (Contd.)

• Will and Consent

–These expressions may overlap sometimes 

–Two separate clauses to make it as comprehensive as possible 

• Third and Fourth clauses

– Bhupinder Singh v. UT of Chandigarh, (2008) 8 SCC 531: Marriage of accused with the complainant void- already married- hence guilty of rape 

• Attorney General’s Reference, Re, sub. nom, R. v. Y. (Martin), (2002) 

–Husband-wife living separately- wife invited him home for reconciliation- but talks failed- he raped her on knife point on two occasions brutally- held guilty of rape 

• R. v. Elbekkay, (1995) Crim LR 163 

–Girl permitted intercourse believing that he was her boyfriend, in fact he was a different person- so no consent- guilty of rape 

• Fifth clause 

–unsoundness of mind or intoxication or 

–Administration of any stupefying or unwholesome substance (drugs) 

– R. v. Fiddler (Mark Anthony), (2001) 

•Accused and Victim, both 12, alone in an upstairs bedroom- both drunk- accused asked whether you want to lose virginity-she said yes- sexual intercourse took place-Held guilty of rape- Boy knew she would not have agreed if sober 

• Kanhimon v. State of Kerala, 1988 

–Woman suffering from Somnambulism (sleep-walking)-walked out of her home at 2 am and reached at a particular spot- 5 accused persons took her to a lodge and gang-raped her- Guilty 

• Sixth clause 

–Under 18 years 

–Raised from 16 by 2013 amendment 

–Birth register showed the age as 14, medical opinion said, between 14 and 16 – birth register should be preferred 

• Seventh clause 

–When she is unable to communicate consent 

• Defence that girl was of easy virtue 

–Even such a woman has a right to refuse to have sex because she is not a vulnerable object for all 

–Even if she has sex regularly, doesn’t mean she has a ‘loose moral character’ 

–Not a reason to be raped 

–She also has a right to protect her dignity just like any other woman 

– Narendar Kumar v. State (NCT of Delhi), 2012 

• Juvenile committing rape 

–Accused between 16-18 then can be tried as an adult for heinous offences 

–But sentencing has to be done by Juvenile Justice Board 

• Absence of injury 

–Injury marks on a woman’s body not compulsory to prove rape 

– Santosh Kumar v. State of MP, 2006 

Woman raped by two persons while she was asleep in a bus- Injury on front part of her body but not on private parts-doesn’t matter- still rape 

– Master Mirdha v. State of Bihar, (2006) 

•Absence of injury on private parts and breasts of woman- does not mean that she had given her consent 

• Penetration 

–Not necessary that there should be complete penetration 

–Even little penetration sufficient to constitute rape 

• Corroboration of testimony 

–Not compulsory in all cases 

–She is not an accomplice but a victim 

–Not necessary that every part of her evidence should be confirmed in every detail by independent evidence 

– State of Mah v. C. K. Jain, (1990) 

Police Officer wrongfully arrested a person- took his wife to a lodge and raped her twice- next day husband out on bail went to the lodge and found her crying-she told the story- in the Court there was corroborative evidence to prove her- but court still believed her statements based on circumstances 

• Charge not proved 

–House owner accused of rape by maid servant 

–After the incident she roamed here and there but did not report the incident 

–On reaching home did not tell anything to her husband 

–Made food for family went to sleep 

–Next day, had a bath, worked in four flats and went to her sister and then filed her report 

– Vimal Suresh Kamble v. Chalu Vera Pinabe, (2003) 

–False case to extort money