Sunday, 26 January 2020

Whether it is necessary to prove that accused caused death of Rape victim with mensrea for applicability of S 376A of IPC?

The above cited principles have been minutely observed by us,
taking into consideration the peculiar facts and circumstances of the case
in hand. At the outset, we would highlight that the High Court while
confirming death has observed that the girl was found bleeding due to
forcible sexual intercourse — which fact, however, is not supported by
medical evidence. However, such erroneous finding has no impact on
conviction under Section 376A of the I.P.C. for a bare perusal of the section
shows that only the factum of death of the victim during the offence of rape is required, and such death need not be with any guilty intention or be a
natural consequence of the act of rape only. It is worded broadly enough to
include death by any act committed by the accused if done
contemporaneously with the crime of rape. Any other interpretation would
defeat the object of ensuring safety of women and would perpetuate the
earlier loophole of the rapists claiming lack of intention to cause death to
seek a reduced charge under Section 304 of I.P.C. as noted in the Report
of the Committee on Amendments to Criminal Law, headed by Justice
J.S. Verma, former Chief Justice of India:
“22. While we believe that enhanced penalties in a substantial
number of sexual assault cases can be adjudged on the basis of
the law laid down in the aforesaid cases, certain situations
warrant a specific treatment. We believe that where the offence
of sexual assault, particularly ‘gang rapes’, is accompanied by
such brutality and violence that it leads to death or a Persistent
Vegetative State (or ‘PVS’ in medical terminology), punishment
must be severe – with the minimum punishment being life
imprisonment. While we appreciate the argument that where
such offences result in death, the case may also be tried under
Section 302 of the IPC as a ‘rarest of the rare’ case, we must
acknowledge that many such cases may actually fall within the
ambit of Section 304 (Part II) since the ‘intention to kill’ may
often not be established. In the case of violence resulting in
Persistent Vegetative State is concerned, we are reminded of
the moving story of Aruna Shanbagh, the young nurse who was
brutally raped and lived the rest of her life (i.e. almost 36 years)
in a Persistent Vegetative State.
23. In our opinion, such situations must be treated differently
because the concerted effort to rape and to inflict violence may
disclose an intention deserving an enhanced punishment. We
have therefore recommended that a specific provision, namely,
Section 376 (3) should be inserted in the Indian Penal Code to
deal with the offence of “rape followed by death or resulting in a
Persistent Vegetative State”.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1523-1524 OF 2019

Ravishankar @ Baba Vishwakarma Vs The State of Madhya Pradesh 
SURYA KANT, J.

Dated:DATED : 03.10.2019
Citation: (2019) 9 SCC 689.
Read full judgment here:Click here
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