Aggravated Rape, Rape by a Person in Authority, and Gang Rape

Section 69, deceitful means. Whoever, by deceitful means or by making a promise to marry a woman without any intention of fulfilling it, has sexual intercourse with her, such intercourse not amounting to rape, is punished with imprisonment which may extend to ten years and fine. The Explanation provides that "deceitful means" includes inducement for, or false promise of, employment or promotion, or marrying by suppressing identity.

Section 70(1), gang rape. Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each is deemed to have committed rape and is punished with rigorous imprisonment for not less than twenty years, extending to imprisonment for the remainder of natural life, and with fine, subject to the same two provisos about the fine.

Section 70(2), gang rape of a woman under eighteen. Each offender is punished with imprisonment for life meaning the remainder of natural life, and with fine, or with death.

Broken down: what makes gang rape different

It is a deeming provision. Section 70 does not require proof that each accused personally committed one of the acts in section 63. Once the group or the common intention is established and the woman is raped, each of them is deemed to have committed rape.

"A group or acting in furtherance of a common intention" is an alternative. Persons constituting a group qualify. So do persons who did not form a group but acted in furtherance of a common intention, which imports the language of section 3(5).

The minimum is twenty years in every case. That is double the minimum for rape under section 64(1), and where the woman is under eighteen the minimum becomes imprisonment for the remainder of natural life.

Section 69 is new, and it will be asked

The Penal Code had no such offence. A false promise of marriage was litigated for years under section 375 itself, on the argument that a consent obtained by such a promise was no consent because it rested on a misconception of fact.

Section 69 removes that argument by giving the conduct its own offence. The words "such sexual intercourse not amounting to the offence of rape" mark it off from section 63: if the case falls within one of the seven descriptions, it is rape and section 69 does not arise.

Its Explanation is wider than the marriage promise. "Deceitful means" includes inducement for or a false promise of employment or promotion, and marrying by suppressing identity, so the section reaches the employer and the man who conceals who he is.

Distinctions that carry marks

A worked example

Four men waylay a woman on a road outside Nashik. Two hold her, one keeps watch, and one commits an act within section 63.

What is each liable for? All four, under section 70(1). The section deems each person constituting the group, or acting in furtherance of a common intention, to have committed the offence of rape. The man who kept watch is not merely an abettor; he is deemed a rapist, and the minimum for each is twenty years rigorous imprisonment.

The woman is sixteen. Section 70(2) then applies rather than section 70(1), because she is under eighteen, and the punishment for each becomes imprisonment for the remainder of natural life and fine, or death.

The fine. In either case the two provisos govern it: it must be just and reasonable to meet her medical expenses and rehabilitation, and it must be paid to her, not to the State.

She dies of the injuries inflicted. Section 66 becomes available against the man who inflicted the injury causing death, carrying not less than twenty years extending to imprisonment for the remainder of natural life, or death.

Change the facts entirely. Suppose instead a college principal tells a student that her admission depends on it and she submits. There is no force and none of the seven descriptions in section 63 applies. Section 68 does: he is in a position of authority, he abused it to induce a woman under his charge to have intercourse, and the intercourse does not amount to rape. The minimum is five years.

What beginners get wrong

Thinking section 66 is a homicide provision. It is not. It punishes a rape in the course of which an injury causing death or a persistent vegetative state was inflicted, and it sits in Chapter V, not among the offences affecting the human body.

Thinking gang rape needs five persons. It does not. Section 70 speaks of "one or more persons constituting a group", and there is no numerical threshold like the five required for an unlawful assembly under section 189.

Reading section 69 as covering every broken engagement. It requires a promise made without any intention of fulfilling it. A promise honestly made and later broken is not within it.

Thinking section 67 makes marital rape an offence. It does not. It reaches only a wife who is living separately, and Exception 2 to section 63 continues to place the wife who is not living separately outside the definition of rape altogether.

Limits and criticism

Section 65 draws two age lines and gives them the same minimum. Under sixteen and under twelve both carry twenty years; the only difference is that the lower band admits the death penalty. Whether a graded minimum would have been more coherent is a fair question.

Death for an offence not causing death. Sections 65(2) and 70(2) permit capital punishment where the victim survives. That is a significant extension of the class of capital offences, and it is defended on deterrence and criticised on the ground that it may increase the risk to the victim's life.

Section 69 is criticised from both directions. Some say it criminalises the ordinary failure of a relationship; others say it is too narrow, because it requires proof of an intention never to marry, which is a state of mind at a past moment.

Quick revision

Section 65(1) and (2). Rape on a woman under sixteen, and under twelve. Both carry a minimum of twenty years rigorous imprisonment; the second admits death. Fine to be paid to the victim in both.

Section 66. Rape causing death or a persistent vegetative state: twenty years to imprisonment for the remainder of natural life, or death.

Section 67. Husband, wife living separately, without consent: two to seven years and fine.

Section 68. Person in authority or a fiduciary relationship, public servant, custodial or hospital staff, abusing position, intercourse not amounting to rape: five to ten years and fine.

Section 69. Deceitful means or a false promise of marriage, intercourse not amounting to rape: up to ten years and fine. Deceitful means includes false promises of employment or promotion and marrying by suppressing identity.

Section 70(1) and (2). Gang rape: minimum twenty years; where the woman is under eighteen, imprisonment for the remainder of natural life or death. Each member is deemed to have committed rape.

Test yourself

1. What is the minimum sentence for gang rape, and what must be proved against each accused? Rigorous imprisonment for twenty years under section 70(1). It need not be proved that each accused personally committed an act within section 63; it is enough that he was one of the persons constituting the group or acted in furtherance of a common intention, and each is then deemed to have committed rape.

2. Which sections of the Sanhita permit death for a sexual offence where the victim survives? Sections 65(2), rape on a woman under twelve, and 70(2), gang rape of a woman under eighteen.

3. What does section 69 punish, and what does the Explanation add? Sexual intercourse obtained by deceitful means or by a promise to marry made without any intention of fulfilling it, where the intercourse does not amount to rape. The Explanation includes within deceitful means an inducement for or false promise of employment or promotion, and marrying by suppressing identity.

4. A hospital administrator induces a patient in the hospital to have intercourse by abusing his position. Which section applies? Section 68, which covers a person on the management or staff of a hospital who abuses that position to induce or seduce a woman present in the premises, where the intercourse does not amount to rape. The minimum is five years rigorous imprisonment.

5. To whom is the fine under sections 65 and 70 payable? To the victim. Both sections carry provisos requiring the fine to be just and reasonable to meet her medical expenses and rehabilitation, and requiring it to be paid to her.