Rape Law in Transition, Part 2: The Anatomy of the Offence

This is Part 2 of nine of Rape Law in Transition, a study of section 376 of the Indian Penal Code, sections 63, 64 and 69 of the Bharatiya Nyaya Sanhita, and the trial of sexual offences from complaint to appeal. One part is published each day from 27 September to 5 October 2026.

III. The Anatomy of the Offence

Rape requires proof of two things: one of four sexual acts, done in one of seven circumstances. The identity of the man who did it is a third element, which the definition assumes rather than states. Everything that follows in this essay is, in the end, about proving or breaking one of these three.

The acts and the circumstances

Section 375 of the Penal Code, carried almost verbatim into section 63 of the Nyaya Sanhita, describes four acts. The first is penetration by the man’s penis, to any extent, into the woman’s vagina, mouth, urethra or anus, or making her do so with him or with another. The second is the insertion of any object, or of any part of the body other than the penis, into her vagina, urethra or anus. The third is the manipulation of any part of her body so as to cause such penetration, and the fourth the application of his mouth to her vagina, anus or urethra.

Explanation 1 treats the labia majora as part of the vagina. Penetration to any extent therefore completes the offence. The point matters whenever medical evidence is argued, for an intact hymen or the absence of genital injury does not by itself disprove it.

The act becomes rape when it is done in one of seven circumstances: against the woman’s will; without her consent; with a consent obtained by putting her, or a person in whom she is interested, in fear of death or hurt; with a consent given because she believed the man to be her husband, when he knew he was not; with a consent given when unsoundness of mind, intoxication, or a stupefying or unwholesome substance left her unable to understand the nature and consequences of what she agreed to; with or without her consent, when she is under eighteen; and when she is unable to communicate consent. The first two descriptions are distinct and are not synonyms, and Part IV explains why the difference matters.

Consent, the exceptions and the related offences

Explanation 2 defines consent as “an unequivocal voluntary agreement”. By it the woman communicates her willingness to participate in the specific sexual act, whether by words, by gestures or by any other form of verbal or non-verbal communication. Its proviso adds that a woman who does not physically resist the act of penetration is not, by reason only of that fact, to be regarded as consenting.

Two exceptions follow. The first excludes a medical procedure or intervention. The second excludes intercourse by a man with his own wife, and its history bears recounting. As enacted in the Penal Code, it applied wherever the wife was not under fifteen. In Independent Thought v. Union of India the Supreme Court read it down so that it applies only where the wife is not under eighteen, bringing it into line with the Protection of Children from Sexual Offences Act; in the leading opinion Madan B. Lokur J. stated expressly that the Court was not dealing with the marital rape of adult women.¹ Section 63 of the Nyaya Sanhita now writes the age of eighteen into the text. What remains is the exception’s protection of a husband who forces intercourse on an adult wife, and that is now before the Supreme Court. On 9 September 2026 a bench presided over by the Chief Justice agreed to decide the validity of the exception in both section 375 and section 63, and left the date of final hearing to be notified.² Until the Court rules, the exception stands.

Two lesser offences sit beside rape. Intercourse without consent by a husband with a wife living separately, whether under a decree or otherwise, is punishable with two to seven years under section 376B of the Penal Code and section 67 of the Nyaya Sanhita. Intercourse by a person in a position of authority or a fiduciary relationship, falling short of rape, is punishable with five to ten years’ rigorous imprisonment under section 376C and section 68.

The punishments

Appendix A tabulates the punishments, but their structure can be stated briefly.

Rape simpliciter carries at least ten years’ rigorous imprisonment, which may extend to life, together with a fine.

The aggravated forms carry the same minimum, but life here means imprisonment for the remainder of the offender’s natural life. They cover rape by a police officer, a public servant, a member of the armed forces, a jail or hospital official, a relative, a guardian, a teacher or a person in a position of trust. They also cover rape of a pregnant or disabled woman, rape that causes grievous harm, and rape committed repeatedly on the same woman.

The minimum rises to twenty years for rape of a girl under sixteen and for gang rape. Death becomes available for rape of a girl under twelve, for rape that causes death or a persistent vegetative state, and for repeat offenders.

The new Sanhita made two structural changes to this scheme. Section 70(2) merged the separate provisions for gang rape of girls under sixteen and under twelve into a single category: gang rape of any girl under eighteen, punishable with imprisonment for natural life or death. Section 71 confined the repeat-offender provision to convictions under sections 64, 65, 66 and 70, leaving sections 67, 68 and 69 outside it. Under sections 65 and 70, the fine must also be just and reasonable to meet the victim’s medical expenses and rehabilitation, and it is paid to her.

These minimum sentences bind the court. Before 2013 a court could impose less than the minimum for adequate and special reasons recorded in writing. That discretion has been withdrawn, and the Supreme Court has said that a sentencing court must now impose at least the statutory minimum.³ How the court chooses a sentence above the floor is considered in Part XV.

Age, and the meeting point with POCSO

The sixth description makes consent irrelevant where the woman is under eighteen. The age of the prosecutrix is therefore, in many cases, the whole of the case. It is a foundational fact that the prosecution must prove, not one the court may assume.

Section 34 of the Protection of Children from Sexual Offences Act requires the Special Court to determine age. The Supreme Court has held that in doing so the court must apply section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, although that provision was framed for children in conflict with the law.⁴ Section 94(2) prescribes an order of proof. The first resort is a date-of-birth certificate from the school, or the matriculation or equivalent certificate from the examining board; failing that, a birth certificate issued by a corporation, municipal authority or panchayat; and only in the absence of both, an ossification test or other medical age-determination test.

In Yuvaprakash the prosecution relied on a transfer certificate and extracts from an admission register. The Court held that these were not the documents section 94(2)(i) contemplates, and the headmasters could not say on what basis the date had been recorded. The only evidence that satisfied section 94 was the ossification report, which placed the girl between eighteen and twenty. The Court called it the most authentic evidence on record and acquitted the accused.

Other decisions point the same way. A baptismal certificate supported only by the mother’s word is not a section 94 document.⁵ A date of birth entered in a school register is admissible as an entry in a public record, but it has no evidentiary value unless the person who made the entry, or who supplied the date, is examined, for parents and near relations with special knowledge are the best witnesses to a date of birth.⁶ And an Aadhaar card establishes identity, not date of birth, so that a school leaving certificate is to be preferred to it.⁷

Where the age rests on a radiological estimate alone, the Supreme Court has held that the estimate is not exact. A sufficient margin must be allowed either way, and the benefit of the resulting doubt goes to the accused.⁸

It is submitted that the radiologist should be cross-examined on which joints were examined, how far each had fused, and on what date the plates were taken. An estimate made in August must still be carried back to the date of an act committed in June.

Defeating the claim of minority rarely ends the case. In Pynchemalangaki Bareh the prosecution failed to prove that the girl was a child, and the conviction under the special statute could not stand. The Supreme Court nevertheless substituted a conviction under section 376 of the Penal Code, although no charge under that section had been framed. It reasoned that the two offences share their ingredients, and that the accused had known the case against him and had fully met it. The substitution therefore occasioned no failure of justice, and the sentence fell from twenty years to ten.⁹

It is submitted that this is the true value of a successful challenge to age. It lowers the statutory minimum and opens the door to a defence of consent. It helps the accused only if consent is also available on the facts.

Appendix A. Punishments under the Penal Code and the Nyaya Sanhita

The table sets the offences of the Penal Code beside their counterparts in the Nyaya Sanhita. “Natural life” means imprisonment for the remainder of the offender’s natural life. The Penal Code column governs any act committed on or before 30 June 2024.

Offence	IPC	BNS	Punishment
Rape	376(1)	64(1)	Rigorous imprisonment of not less than 10 years, extending to life, and fine
Aggravated rape: police officer, public servant, armed forces, jail or hospital staff, relative, guardian, teacher, person in trust, pregnant or disabled victim, grievous harm, rape repeatedly on the same woman	376(2)(a)–(n)	64(2)(a)–(m)	Rigorous imprisonment of not less than 10 years, extending to natural life, and fine
Rape of a woman under 16	376(3)	65(1)	Rigorous imprisonment of not less than 20 years, extending to natural life, and fine
Rape of a woman under 12	376AB	65(2)	Rigorous imprisonment of not less than 20 years, extending to natural life, and fine; or death
Rape causing death or a persistent vegetative state	376A	66	Rigorous imprisonment of not less than 20 years, extending to natural life; or death
Intercourse by husband with wife living separately, without her consent	376B	67	Imprisonment of 2 to 7 years, and fine
Intercourse by a person in authority, not amounting to rape	376C	68	Rigorous imprisonment of 5 to 10 years, and fine
Gang rape	376D	70(1)	Rigorous imprisonment of not less than 20 years, extending to natural life, and fine
Gang rape of a minor	376DA (under 16); 376DB (under 12)	70(2) (under 18)	IPC: natural life and fine (376DA); natural life and fine, or death (376DB). BNS: natural life and fine, or death
Repeat offender	376E	71	Natural life or death. Section 71 BNS applies only to convictions under ss. 64, 65, 66 and 70
Intercourse by deceitful means or false promise to marry, not amounting to rape	None: prosecuted as s. 375 read with s. 90	69	Imprisonment up to 10 years, and fine; no minimum

The series

Part 1: Which Law Governs
Part 2: The Anatomy of the Offence (this part)
Part 3: Consent and Will
Part 4: The False Promise of Marriage
Part 5: Investigation and Delay
Part 6: Medical and DNA Evidence
Part 7: Electronic Evidence and Bail
Part 8: Charge, Quashing and the Trial
Part 9: Final Arguments, Sentence and Appeal

Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.

Independent Thought v. Union of India, AIR 2017 SC 4904, decided on 11 October 2017, paras 105 and 106 (Madan B. Lokur J; Deepak Gupta J delivered a separate concurring opinion). ↩
As reported by LawChakra on 9 September 2026 (“Can a husband be prosecuted while marital rape exception stands?”) and by The News Mill in September 2026. The lead matter is Hrishikesh Sahoo v. State of Karnataka, SLP (Crl.) Nos. 4063–4064 of 2022. ↩
Ehsaan v. State (NCT of Delhi), 2026 INSC 720, decided on 20 July 2026 (Sanjay Karol and Augustine George Masih JJ), para 9, in the context of section 376D. ↩
P. Yuvaprakash v. State, 2023 INSC 626, decided on 18 July 2023 (S. Ravindra Bhat and Aravind Kumar JJ), paras 12–14 and 19. ↩
Pynchemalangaki Bareh v. State of Meghalaya, 2026 INSC 984, paras 33–36. ↩
Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604 (no paragraph numbers on Indian Kanoon). ↩
Saroj v. IFFCO-Tokio General Insurance Co., 2024 INSC 816, decided on 24 October 2024 (Sanjay Karol and Ujjal Bhuyan JJ), paras 9.4–9.6 and 10. The case arose from a motor accident claim, and the Court relied substantially on a circular of the Unique Identification Authority of India. ↩
Rajak Mohammad v. State of Himachal Pradesh, Criminal Appeal No. 1395 of 2015, decided on 23 August 2018 (Ranjan Gogoi, Navin Sinha and K.M. Joseph JJ), paras 5–8. ↩
Pynchemalangaki Bareh v. State of Meghalaya, 2026 INSC 984, paras 50, 54 and 58–59. ↩