CONCLUSION
172nd Report of the Law Commission India
7.1. On
the basis of the discussions
contained in the preceding chapters, the Commission is of
the considered opinion that
the following amendments need to be carried out in the Indian Penal
Code, 1860; the Code of Criminal Procedure, 1973 and the Indian
Evidence Act, 1872.
7.2. Changes
recommended in the Indian Penal Code, 1860
7.2.1. Substitution
of existing section 375 of the IPC recommended.- The
existing section 375 be substituted by the following:
"375. Sexual
Assault: Sexual assault means –
a) penetrating
the vagina (which term shall include the
labia majora), the
anus or urethra of any person
with –i). any
part of the body of another person or ii). an object
manipulated by another person except
where such penetration is carried
out for proper hygienic or
medical purposes;
b) manipulating
any part
of the body
of another person so
as to cause penetration of the
vagina (which term shall include the labia
majora), the anus or the urethra
of the offender by any part of the other person's body;
c) introducing
any part of the penis of a person into the mouth of another person;
d) engaging
in cunnilingus or fellatio; or
e) continuing sexual
assault as defined in clauses (a)
to (d) above in circumstances falling
under any of
the six following descriptions:
First- Against the other person's
will.
Secondly- Without the other
person's consent.
Thirdly- With the other person's
consent when such consent has been
obtained by putting such other person or any person in whom such other person
is interested, in fear of death or hurt.
Fourthly- Where the other person
is a female, with her consent, when the man knows that he is not the husband of
such other person and that her consent is given because she believes that the offender is another man to
whom she is or believes herself to be lawfully married.
Fifthly- With the consent of
the other person, when,
at the time
of giving such consent, by reason of unsoundness of mind or intoxication
or the administration by the
offender personally or
through another of any stupefying
or unwholesome substance, the other
person is unable to
understand the nature and consequences of that to which such other
person gives consent.
Sixthly- With
or without the
other person's consent, when such other person is under sixteen years
of age.
Explanation: Penetration to any extent is penetration for the
purposes of this section.
Exception: Sexual intercourse by a man with his own
wife, the wife not being under sixteen
years of age,
is not sexual assault."
Further we are not satisfied that
the Exception should be deleted.
(paragraphs 3.1.2 and 3.1.2.1, supra)
7.2.2. Recasting
of section 376 of the IPC recommended.-Section 376 shall be recast as
follows:
"376. Punishment for
sexual assault -
(1) Whoever, except in
the cases provided
for by sub-section (2), commits
sexual assault 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 extend to ten years and shall also be liable to fine
unless the person subjected to sexual assault is his own wife and is not
under sixteen years of age, in which case,
he shall be
punished with imprisonment of either description for a term which may
extend to three years and shall also be liable to fine.
If the sexual assault is committed by a person in a
position of trust
or authority towards
the personassaulted or by a near relative of the person
assaulted, he/she shall be
punished with rigorous imprisonment for a term which shall not be less than ten
years but which may extend to
life imprisonment 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 for a term of less than minimum punishment prescribed in
this sub-section.
(2) Whoever,-
(a) being a police officer commits sexual assault-
(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 person in 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 commits sexual assault on
a person in his 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 women's
or children's institution takes advantage
of his official position and
commits sexual assault 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 sexual
assault on a person in that hospital; or
(e) commits sexual
assault on a woman knowing her to be pregnant; or
(f) commits sexual assault on a person when
such person is under sixteen years of age; or
(g) commits gang sexual assault, 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.
Explanation 1.- Where a
person is subjected
to sexual assault by
one or more in a group of persons acting in furtherance
of their common intention, each of the persons shall be deemed to have
committed gang sexual
assault within the meaning of this sub-section.
Explanation 2.-
"Women's or children's institution" means an institution, whether
called an orphanage or a home for neglected women
or children or a widows'
home or an institution called by any other name, which is established and
maintained for the reception and care
of women or children.
Explanation 3.- "Hospital" means
the precincts of the
hospital and includes the precincts of any institution for the reception
and treatment of
persons during convalescence or
of persons requiring medical attention or
rehabilitation."
(paragraph
3.2.3, supra)
7.2.3. Modification
in section 376A
of the IPC recommended.- Section 376A shall read as
follows:
"376A. Sexual assault by the husband upon his wife
during separation.- Whoever commits sexual assault upon 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 shall not be less
than two years and which may extend to seven years and shall
also be liable to fine."
(paragraph
3.3.1, supra)
7.2.4. Amendment of sections 376B, 376C
and 376D.- We recommend
enhancement of punishment
- with a minimum punishment of not less than
five years. We
have also added an
Explanation which will govern all these three sections. The Explanation defines "sexual
intercourse" to mean any of the acts mentioned in clauses (a) to
(e) of section 375. Explanation
to section 375 will however apply even in the case of
sexual intercourse as defined by the Explanation to this section.
Accordingly, the
modified sections 376B, 376C and 376D of the IPC shall read as follows:
"376B. Sexual intercourse by public servant with
person in his custody.-
Whoever, being a public servant, takes advantage of his/her official
position and induces
or seduces any
person, who is in
his/her custody as such public servant
or in the custody
of a public
servant subordinate to him,
to have sexual
intercourse with him/her, such
sexual intercourse not
amounting to the offence
of sexual assault,
shall be punished
with imprisonment of either
description for a term which shall not be
less than five years and which
may extend to ten years 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 for a
term of less
than five years.
Explanation:
"Sexual
intercourse" in this section and sections 376C
and 376D shall
mean any of
the acts mentioned in
clauses (a) to (e) of
section 375.
Explanation to section 375 shall also be
applicable."
"376C. Sexual
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/her official position
and induces or seduces any inmate of such jail, remand
home, place or institution to have sexual intercourse with him/her, such
sexual intercourse not amounting to the offence of sexual assault,
shall be punished
with imprisonment of either description for a term which shall not be
less than five years
and which may extend to ten years 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 for a
term of less
than five years.
Explanation
1.- "Superintendent" in relation to a jail, remand home or other
place of custody or
a women's or children's institution includes a person
holding any other office in such jail,
remand home, place or institution by virtue of which he/she
can exercise any
authority or control over its
inmates.
Explanation
2.- The expression
"women's or children's institution"
shall have the same meaning as in Explanation 2 to sub-section (2) of section
376.
376D. Sexual
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 hospital takes
advantage of his/her position and
has sexual intercourse with any person in that hospital,
such sexual intercourse not amounting
to the offence of
sexual assault, shall be punished with imprisonment of either
description for a term which shall not be
less than five years and which
may extend to ten years 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 for a term
of less than five years.
Explanation.- The expression "hospital" shall
have the same meaning
as in Explanation 3 to sub-section (2) of section
376."
(paragraphs 3.4
& 3.4.1, supra)
7.2.5. Insertion of new section 376E recommended.- A new section,
namely, section 376E be inserted in the IPC in the following
terms:
"376E. Unlawful
sexual contact.- (1) Whoever, with sexual intent, touches, directly or
indirectly, with a part
of the body or
with an object,
any part of the body of another
person, not being the
spouse of such
person, without the consent
of such other
person, shall be punished with simple imprisonment for a
term which may extend to two years or with fine or with
both.
(2)
Whoever, with sexual intent,
invites, counsels or incites a young person to touch, directly or
indirectly, with a part of the body or with an object, the body of any person, including
the body of the person who so invites, counsels or incites,
or touches, with
sexual intent, directly or
indirectly, with a part of the body or with an object any
part of the body of a young
person, shall be punished with imprisonment of either description which may extend
to three years and shall also be liable to fine.
(3) Whoever
being in a position of trust or
authority towards a young person
or is a person with whom the young person
is in a
relationship of dependency,
touches, directly or indirectly, with sexual intent, with a part of the body
or with an object, any part of the body of such young person, shall
be punished with
imprisonment of either description
which may extend to seven years and shall also be liable
to fine.
Explanation:
"Young person" in
this sub-section and sub-section (2)
means a person below the age of
sixteen years."
(paragraphs 3.5
& 3.5.1, supra)
7.2.6. Deletion of section
377.- Section 377,
IPC deserves to be deleted
in the light
of the changes effected by us in
section 375 to 376E. We leave persons having
carnal intercourse with any animal, to
their just deserts.
(paragraph 3.6,
supra)
7.2.7. Amendment of section 509, IPC.- We recommend that the existing section 509 be amended as
follows:
"509.
Word, gesture or
act intended to
insult the modesty of a woman:
Whoever,
intending to insult the modesty of any woman, utters any
word, makes any sound or
gesture, or exhibits any
object intending that
such word or sound shall be heard, or that such gesture or object
shall be seen, by such woman, or intrudes upon the privacy
of such woman, shall be punished with simple
imprisonment for a term
which may extend
to three years and shall also be liable to fine."
(paragraph 3.7,
supra)
7.2.8. New
section 166A, IPC recommended.-
We recommend that a new section 166A be introduced in the IPC
in the following terms:
"166A.
Whoever, being a public servant-
(a) knowingly disobeys
any direction of the law prohibiting
him from requiring
the attendance at any
place of any person for the purpose of investigation
into an offence or other matter, or
(b) knowingly disobeys any other direction of the law
regulating the manner in which he shall conduct
such investigation, to the prejudice of any person, shall be punished
with imprisonment for a
term which may extend to one year
or with fine or with both."
(paragraphs 3.8 & 3.8.1, supra)
7.2.9. No
definition of the expression "consent" is called for at this stage.
(paragraph 3.9,
supra)
7.3. Changes recommended
in the Code
of Criminal Procedure, 1973
7.3.1. Insertion
of sub-sections (3) and (4) in
section 160 of the Code of Criminal Procedure, 1973.- We recommend that the
following two sub-sections be inserted in section160 of the Code of Criminal
Procedure:
"(3) Where under this chapter, the statement of a female
is to be
recorded either as
first information of an offence or in the course of an investigation
into an offence and she is a person against whom an offence under sections 354,
375, 376, 376A, 376B,
376C, 376D, 376E or 509 of the Indian
Penal Code is
alleged to have
been committed or attempted,
the statement shall be recorded
by a female police officer and in case a
female police officer
is not available,
by a female government servant
available in the vicinity
and in case a female government
servant is also not available, by a female
authorised by an organisation interested in the welfare of
women or children.
(4) Where in
any case none of the alternatives
mentioned in sub-section (3) can be
followed for the reason that no
female police officer or female government
servant or a female authorised by an organisation
interested in the welfare of
women and children is available, the officer in charge of the
police station shall, after
recording the reasons in writing, proceed with the recording of the statement
of such female
victim in the presence of a relative of the
victim."
(paragraphs 4.2.3 &
4.2.3.1, supra)
7.3.2. Modification
of the proviso to sub-section (1) of section 160.- We recommend raising
the age
mentioned in the proviso to
sub-section (1) of section 160 from fifteen years to sixteen years.
(paragraph 4.3,
supra)
7.3.3. Substitution
of the proviso to sub-section (1) of section 160 recommended.- We
recommend that in addition to the above modification, the proviso to
sub-section (1) of section 160 be
substituted to read as follows:
"Provided that no male person under the age of 16 years
or woman shall be required to attend at any place other than the place
in which such
male person or woman resides.
While recording the statement, a
relative or a friend
or a social worker of the choice of the person
whose statement is being recorded
shall be allowed
to remain present. The relative,
friend or social worker so allowed to be present shall not interfere with the recording of statement in any manner whatsoever."
(paragraphs 4.3.1 & 4.3.2, supra)
7.3.4. Insertion of a new section, namely, section
164A in the Code
of Criminal Procedure, 1973.- We
recommend that the following section 164A be inserted in the Code of Criminal
Procedure:
"164A.
(1) Where, during the stage when any offence
under section 376,
section 376A, section 376B,
section 376C, section
376D or section 376E is under
investigation and it is proposed to get
the victim examined by a medical expert, such examination shall be
conducted by a registered
medical practitioner, with the consent of the victim or of some person
competent to give such consent on
his/her behalf. In all cases, the victim
should be sent for such examination without any delay.
Provided that if the victim happens to be a
female, the medical
examination shall be conducted by a female medical officer,
as far
as possible.
(2) The registered medical practitioner to whom the victim is forwarded shall without delay examine the
person and prepare
a report specifically
recording the result
of his examination and giving
the following details:
(i) the name and address of the victim and the person by
whom he/she was brought,
(ii) the age of the victim,
(iii) marks of
injuries, if any, on the person of the victim,
(iv) general mental
condition of the victim and
(v) other material
particulars, in reasonable
detail.
(3) The report shall state precisely the reasons for
each conclusion arrived at.
(4) The report shall
specifically record that the
consent of the victim or of some person competent to give such consent
on his/her behalf to such examination had been obtained.
(5) The exact
time of commencement and completion
of the examination shall also be noted in the
report, and the
registered medical practitioner shall
without delay, forward
the report to the
investigating officer, who shall forward it
to the Magistrate
referred to in section
173 as part of the documents
referred to in clause (a) of sub-section (5) of that section.
(6) Nothing in
this section shall
be construed as rendering
lawful any examination without the consent of the
victim or any
person competent to give such consent on his/her behalf."
(paragraphs 4.5.1 and 4.5.2, supra)
7.3.5. Insertion
of new section
53A in the
Code of Criminal Procedure recommended.- The proposed section 53A shall read as follows:
"53A. (1)
When a person accused of any of the offences under
sections 376, 376A,
376B, 376C, 376D or 376E or of an
attempt to commit any of the said
offences, is arrested and an
examination of his/her person is to be made under this
section, he/she shall be
sent without delay
to the registered medical
practitioner by whom he/she is to be
examined.
(2) The registered
medical practitioner conducting such examination shall
without delay examine such
person and prepare
a report specifically recording
the result of
his examination and giving the following particulars:
(i) the name
and address of the accused and the
person by whom
he was brought,
(ii) the age of the accused,
(iii) marks of
injury, if any, on the person of the accused, and
(iv) other material particulars in reasonable detail.
(3) The report shall state precisely
the reasons for each conclusion arrived at.
(4) The exact
time of commencement and completion
of the examination shall also be noted in the
report, and the
registered medical practitioner
shall, without delay,
forward the report to
the investigating officer, who shall forward it
to the Magistrate
referred to in section
173 as part of the documents
referred to in clause (a) of sub-section (5) of that section."
(paragraph 4.6.2, supra)
7.3.6. Consequential
amendments in the First Schedule to the
Code of Criminal
Procedure, 1973 recommended.
Consequent
upon the proposed amendments in the IPC, the existing
entries in respect of sections 376 to
376D, 377 and 509
will have to be substituted and entry in respect of new section 376E,
IPC will
have to be
inserted.
