FANIBHUSHAN BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Rape or Raptus is when a man has carnal knowledge of a woman by force and against her will' (Co. Litt. 123 b); or, as expressed more fully, T1rape is the carnal knowledge of any woman, above the age of ten years, against her will; or of a woman child, under that age, with or against her will (Hale P.C. 628). In India, as set out in Clause Five of Sec. 375 of Indian Penal Code, 1860 (in short, IPC) the age relating to consent is sixteen years, at present. Original age of ten has been substituted from time to time in 1891 and 1925 by twelve years, and fourteen years. Since 1949 it is sixteen years.

(2.) The essential words in an indictment for rape are rapuit and carnaliter cognovit. Rape is no longer considered as sexual assault by a man on the victim. Its scar on account of physical action may be obliterated; but it lives in an indolent state of mind of the victim which is never healed, Here the victim whose name we do not propose to indicate, has suffered ignominy of sexual assaults, as is claimed, by three persons, present appellants. Such an act has been described as T1gang rape in Sec. 376, IPC. By Explanation 1, it is provided that when a woman is raped by one or in a group of persons acting in furtherance of their common intention, each of the persons is deemed to have committed gangrape within the meaning of Sub-sec. (2) of Sec. 376. A higher punishment is provided by enacting that the imprisonment shall be for a term not less than ten years, or may be for life and with liability for fine also. The Explanation has been introduced by the Legislature with a view to effectively deal with the growing menace of gang rapes.

(3.) The three appellants have been sentenced to undergo imprisonment for life by learned Sessions Judge, Sundargarh on the basis of their conviction under Sec. 376, IPC. Additionally, they were sentenced to undergo rigorous imprisonment for five years for the offence punishable under Sec. 3 (1)(xii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short, Atrocities Act).