U/s. 375 of IPC; Rape
Ratheesh Padmanabha
(Querist) 23 August 2008
This query is : Resolved
Whether the term 'rape' is a legal term or medical condition? Suppose, in Gynaecological Report, the Doctor opined that " Rape held two days before" without any reference of injury/laceration/abrasion over the private part of the victim, can be enough for the jury to form an opinion that the offence so-called 'rape' has been held or not.
Ratheesh Padmanabha
(Querist) 23 August 2008
Rape is a legal term, not the medical condition. The term 'rape' is stranger to the medical lexicology. So, the Apex Court earlier held that the statement and other material evidences of the prosecutrix which corroborated the fact-in-issue enough for holding the conviction. It is not necessary to prove clinchingly with the support of medical evidence of the question of intercourse has been held or not.
Srinivas.B.S.S.T
(Expert) 23 August 2008
Sir i think you might have not gone through the medical report fully. The Doctor will not simply say that when the rape is occurred. The report will be a detailed one covering each and every minute aspects such as injuries on the person of the prosecutrix and any lacerations on labia minora or majora. The doctor after conducting stapula test will also opine whether the prosecutrix is habituated to have sex or not. Not only these but the medical report will generally contain detailed discussion about the all the asects.
As you yourself stated in your second posting that the Apex court held in catena of its findings that in cases under Secion 376 technicalities should not be given major consideration. Though the Apex Court is making rulings with an intention to make the heinous offence punishable, the crime rate is increasing fastapace.
KamalNayanSaxena
(Expert) 24 August 2008
By a process of judicial interpretation the provisions of S. 375, IPC cannot be altered so as to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vagina and finger/anal penetration and object /vaginal penetration within its ambit S. 375 uses the expression "sexual intercourse" but the said expression has not been defined. The dictionary meaning of the word "sexual intercourse" is hetrosexual intercourse involving penetration of the vagina by the penis. Prosecution of an accused for an offence under S. 376, IPC on radically enlarged meaning of S. 375, IPC i.e. by including all forms of penetration violate the guarantee enshrined in Art. 20(1) of the Constitution which says that no person shall be convicted of any offence except for violation of a law in foce at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. Such a wide wide definition so as to include all forms of penetration to be given to "rape" as defined in S. 375, IPC so that the same may become an offence punishable under S. 376, IPC has neither been considered nor accepted by any Court in India so far. Only sexual intercourse, namely, hetrosexunal intercourse involving penetration of the vagina by the penis coupled with the explanation that penetration is sufficient to constitute the sexual intercourse necessary for the offence of rape has been held to come within the purview of S. 375, IPC. An exercise to alter the definition of rape, as contained in S. 375, IPC, by a process of judicial interpretation, and that too when there is no ambiguity in the provisions of the enactment, is bound to result in good deal of chaos and confusion, and will not be in the interest of society at large.
The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what was not been said. As a consequence a construction which requires for its support addition or substitution of words or which results in rejection of words as meaningless has to be avoided. It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. Similarly, it is wrong and dangerous to proceed by substituting some other words for words of the statute. It is equally well settled that a statute enacting an offence or imposing a penalty is strictly construed. The fact that an enactment is a penal provision is in itself a reason for hesitating before ascribing to phrases used in it a meaning broader than that they would ordinarily bear.
Sections 354, 375 and 377, IPC have come up for consideration before the superior courts of the country on innumerable occasions in a period of almost one and a half century. Stare decisis is a well known doctrine in legal jurisprudence. The doctrine of stare decisis, meaning to stand by decided cases, rests upon the principle that law by which men are governed should be fixed, definite and known , and that, when the law is declared by court of competent jurisdiction authorised to construe it, such declaration, in absence of palpable mistake or error, is itself evidence of the law until changed by competent authority. It requires that rules of law when clearly announced and established by a Court of last resort should not be lightly disregarded and set aside but should be adhered to and followed. What it precludes is that where a principle of law has become established by a series of decisions, it is binding on the courts and should be followed in similar cases. It is a wholesome doctrine which gives certainty to law and guides the people to mould their affairs in future. There is absolutely no doubt or confusion regarding the interpretation of provisions of S. 375, IPC and the law is very well sett
K.C.Suresh
(Expert) 24 August 2008
Thank you Mr. Saxena. A good work
