Law on "Death for Rape" under POCSO Act

November 30, 2018
By Advocate Chikirsha Mohanty



Committing rape is quite possibly the worst crime a human can commit. Rape is not just a crime against the person but also against the soul of the person, the nation at large and also against humanity in general. Doing anything without the consent of the other person is a crime in itself let alone committing rape. And, therefore, it is the worst possible act.
 
The immediate need of the hour is to punish the culprits and teach future culprits of the outcome of the crime. The new stringent law which awards death penalty to culprits committing the heinous crime on children under the age of 12 years is by far the best law possible to inflict fear in the eyes of such criminals.
 
However, many feel that committing rape on anyone irrespective of the age of the survivor must be dealt with the same amount of punishment since education hasn’t really been able to prevent rapes at least not in India.
 
As a result, an ordinance providing the death penalty for rapists of children under the age of 12 years and other stringent penal provisions/ amendments for rape have been broadcasted after the outrage that was created after the Kathua and Unnao rape cases.
 
The Ordinance namely the Criminal Law Amendment Ordinance, 2018, amends Indian Penal Code, Code of Criminal Procedure, Indian Evidence Act, and Protection of Children from Sexual Offences (POCSO) Act.
 
In the law guide, we will help you understand the new law with its salient features and how it amends the existing laws already prevalent in India.
 

Salient features of the Law

  • Minimum Punishment for Rape made 10 Years

  • Minimum punishment of twenty years to a person committing rape on a woman aged below 16

  • Minimum Punishment of 20 years rigorous imprisonment and maximum Death penalty/ Life Imprisonment for committing rape on a girl aged below 12

  • Fine imposed shall be just and reasonable to meet the medical expenses and rehabilitation of the victim

  • Police officer committing rape anywhere shall be awarded rigorous imprisonment of minimum ten years

  • Investigation in rape cases to be completed within 2 months

  • No Anticipatory bail can be granted to a person accused of rape of girls of age less than sixteen years
     

Amendment to Indian Penal Code (IPC)

Section- 376 of IPC: Minimum Punishment for Rape has been made 10 years. It was 7 years earlier. The Maximum punishment remains the same, i.e. Life imprisonment.
 
A new clause (3) has been added to Section- 376, which prescribes the Minimum punishment of twenty years to a person committing rape on a woman under 16 years of Age.
 
A new Section- 376AB has been inserted which prescribes the minimum punishment of twenty years rigorous imprisonment to a person committing rape on a woman less than twelve years of Age. Such a person can be awarded capital sentence as well.
 
Sections- 376DA and 376DB provide minimum punishment of life imprisonment for persons involved in gang rape of a woman aged less than 16 years and 12 years respectively.

The death penalty is also prescribed for persons involved in gang rape of a girl of age less than 12 years.
 
It is also provided in these sections, that such fine shall be imposed which shall be just and reasonable to meet the medical expenses and rehabilitation of the victim and the fine imposed is to be paid to the victim.
 
Section- 376 (2) (a), the sentence “within the limits of the police station to which such police officer is appointed” has been omitted. This omission implies, no matter where a Police officer commits rape, he is to be punished with rigorous imprisonment of a minimum of 10 years.
 

Amendment to Code of Criminal Procedure (CrPC)

The investigation in relation to in all Rape cases may be completed within three months from the date on which the information was recorded by the officer in charge of the police station.
 
The provisions of Code of Criminal Procedure have also been amended to insert a subsection which prescribes six months’ time to dispose of an appeal in rape cases.
 
No Anticipatory bail can be granted to a person accused of rape of girls of age less than sixteen years.
 
New Sub Section has been added to Section- 439 which mandates the presence of informant or any person authorized by him at the time of hearing an application for bail to a person accused of rape of girls of age less than 16 years.
 

Amendment to Protection of Children from Sexual Offences (POCSO) Act and the Indian Evidence Act

Section- 42 of the POCSO Act has been also amended to include newly inserted IPC provisions Section- 376AB, Section- 376DA, and Section- 376DB. Section- 53A of the Evidence Act that deals with evidence of character or previous sexual experience not relevant in certain cases and Section- 146 of the Act that deals with evidence of character or previous sexual experience not relevant in certain cases, has also been amended to include newly inserted IPC provisions Section- 376AB, Section- 376DA, Section- 376DB.



 


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