1. Introduction to Sexual Offences under the Bharatiya Nyaya Sanhita, 2023
Sexual offences are among the serious offences recognised under the Bharatiya Nyaya Sanhita, 2023 (BNS). They involve unlawful sexual conduct that may violate a person’s bodily integrity, sexual autonomy, dignity, privacy or personal liberty. The BNS replaced the Indian Penal Code, 1860 (IPC) and provides a reorganised framework for dealing with various criminal offences, including sexual offences.
The principal provisions relating to sexual offences against women are contained in Sections 63 to 73 of the BNS. These provisions deal with rape, punishment for rape, aggravated forms of rape, sexual intercourse by a husband with his wife during separation, sexual intercourse by a person in authority, sexual intercourse by employing deceitful means, gang rape, repeat offenders, protection of the victim’s identity and publication of court proceedings.
2. Meaning of Sexual Offence
A sexual offence generally means an unlawful act of a sexual nature that violates the legally protected rights or interests of another person. The term is broad and does not represent a single offence under the BNS. Different forms of sexual misconduct are separately defined and punished according to their specific statutory requirements.
Thus, a sexual offence under the BNS must be determined by examining the specific statutory provision, its essential ingredients and the circumstances in which the act was committed. The nature of the conduct alone is not sufficient; its legal classification depends upon the requirements of the applicable section.
3. Objective of Sexual Offence Provisions under the BNS
The principal objective of the sexual-offence provisions is to protect individuals from unlawful sexual conduct and safeguard bodily integrity, sexual autonomy, dignity and personal liberty. These provisions establish criminal liability for conduct that falls within the statutory definitions and provide punishments proportionate to the seriousness of the offence. An important objective is the protection of sexual autonomy and consent.
Another objective is to address the misuse of authority and specified forms of deception.
The BNS further seeks to promote accountability and deterrence through enhanced punishment for specified repeat offenders under Section 71. This reflects the legislative concern regarding persons who commit qualifying sexual offences despite a previous conviction.
Victim protection is also an important aspect of the framework. Section 72 protects the identity of victims in specified cases, while Section 73 regulates the publication of court proceedings. These provisions seek to protect victims from unnecessary public exposure and preserve their privacy and dignity during and after criminal proceedings.
Rape and Its Core Framework
Sections 63 to 73 BNS create a comprehensive framework addressing different forms and circumstances of sexual offences, their punishments, aggravated situations, repeat offending and the protection of victims’ privacy and identity.
Section 63 BNS — Rape: Definition
Section 63 of the Bharatiya Nyaya Sanhita, 2023 (BNS) defines the offence of rape. The provision is structured in two parts. First, clauses (a) to (d) identify the sexual acts that fall within the definition. Secondly, clauses (i) to (vii) specify the circumstances in which those acts constitute rape.
The opening words of Section 63 are:
“A man is said to commit ‘rape’ if he—”
Section 63(a) — Penetration by Penis
The Bare Act provides that a man commits rape if he:
“penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person”
Under this clause, penetration by the penis into the vagina, mouth, urethra or anus of a woman can constitute rape when any of the circumstances specified in Section 63(i) to (vii) exists.
The words “to any extent” are important. The law does not require complete penetration. Penetration to any extent is sufficient for the purpose of this clause, provided that the required circumstances of rape are present.
The provision also covers a situation where the man makes the woman perform the act with him or with another person. Thus, the clause is not restricted to a situation where the man himself directly performs the penetration.
Therefore, Section 63(a) primarily deals with penile penetration, but the legal classification as rape depends upon the circumstances in which the act occurred.
Section 63(b) — Insertion of Object or Other Part of Body
Section 63(b) provides:
“inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person”
This clause covers penetration involving an object or a part of the body other than the penis.
The object or body part may be inserted into the woman’s vagina, urethra or anus. Once again, the expression “to any extent” means that complete insertion is not necessary.
The clause also covers situations where the man makes the woman perform such an act with him or with another person.
The important distinction between clause (a) and clause (b) is therefore the nature of the penetrating instrument. Clause (a) deals specifically with the penis, whereas clause (b) deals with an object or other body part that is not the penis.
Section 63(c) — Manipulation Causing Penetration
Section 63(c) provides:
“manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person”
This clause addresses situations where the man manipulates a part of the woman’s body in such a manner as to cause penetration.
The provision is wider than simply describing direct insertion. It specifically covers manipulation that results in the required penetration into the vagina, urethra, anus or any part of the woman’s body.
The clause further provides that the offence may also occur where the man makes the woman perform such an act with him or another person.
Thus, the essential idea behind Section 63(c) is manipulation resulting in penetration, when accompanied by one of the circumstances specified in Section 63(i) to (vii).
Section 63(d) — Applying Mouth to Vagina, Anus or Urethra
Section 63(d) provides:
“applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person”
This clause specifically includes the act of applying the man’s mouth to the vagina, anus or urethra of a woman.
The provision also covers a situation where the man makes the woman perform the corresponding act with him or another person.
Therefore, Section 63(d) expressly recognises specified oral sexual conduct within the statutory definition of rape when one of the circumstances in Section 63(i) to (vii) is present.
Section 63(i) — Act Against Her Will
The first circumstance is:
“against her will”
The expression focuses on the woman’s unwillingness to participate in the sexual act. Therefore, where the sexual act described in clauses (a) to (d) is performed against her will, and the statutory requirements are otherwise satisfied, this circumstance can bring the conduct within the definition of rape.
This clause is distinct from Section 63(ii), which deals specifically with the absence of consent.
Section 63(ii) — Act Without Her Consent
The second circumstance is:
“without her consent”
This clause must be read together with Explanation 2, which gives the statutory meaning of consent. Under that Explanation, consent requires an unequivocal voluntary agreement communicated through words, gestures or another form of verbal or non-verbal communication indicating willingness to participate in the specific sexual act.
Therefore, the question is not merely whether the woman physically participated in the act. The circumstances must be examined to determine whether there was legally meaningful and voluntary consent.
Section 63(iii) — Consent Obtained by Fear of Death or Hurt
The third circumstance provides:
“with her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt”
Importantly, the threat need not necessarily be directed at the woman herself. The Bare Act expressly includes “any person in whom she is interested.”
Thus, if consent is obtained because the woman fears that she or a person in whom she is interested will suffer death or hurt, the apparent consent does not prevent the act from falling within this circumstance.
The focus is therefore on the circumstances in which the consent was obtained, rather than merely on the fact that the woman communicated agreement.
Section 63(iv) — Consent Based on Mistaken Identity of Husband
The fourth circumstance provides:
“with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married”
This clause deals with consent obtained through mistaken identity.
The provision requires a specific situation. The man knows that he is not the woman’s husband, but the woman gives consent because she believes that he is another man to whom she is, or believes herself to be, lawfully married.
Thus, the woman’s consent is based on a false belief about the identity of the man. The accused’s knowledge that he is not her husband is also an important part of the statutory circumstance.
Section 63(v) — Consent When Woman Cannot Understand Nature and Consequences
The fifth circumstance provides:
“with her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent”
This clause concerns circumstances where the woman apparently gives consent but is unable to understand the nature and consequences of the act at the time she gives that consent.
The Bare Act identifies three relevant situations: unsoundness of mind, intoxication, or administration of a stupefying or unwholesome substance.
The important requirement is the woman’s inability to understand the nature and consequences of what she is consenting to. Therefore, the mere existence of intoxication or another condition is not the entire test; the statutory circumstance focuses on whether she was unable to understand the nature and consequences of the particular act.
The provision also covers administration of such a substance by the man personally or through another person.
Section 63(vi) — Woman Under Eighteen Years of Age
The sixth circumstance provides:
“with or without her consent, when she is under eighteen years of age”
Where the woman is under eighteen years of age, the provision applies with or without her consent. In other words, apparent consent does not prevent the sexual act from falling within the definition of rape when the statutory age condition is satisfied.
The provision therefore treats age as independently significant. The law does not make the criminal classification dependent upon establishing absence of consent in such a case.
Section 63(vii) — Woman Unable to Communicate Consent
The seventh circumstance provides:
“when she is unable to communicate consent”
This provision addresses circumstances where the woman is unable to communicate consent.
It must be read together with Explanation 2 because the statutory concept of consent involves communication of willingness through words, gestures or another form of verbal or non-verbal communication.
Where the woman is unable to communicate consent and the relevant sexual act is committed in circumstances covered by this clause, the conduct can fall within the definition of rape.
The provision therefore recognises that a person’s inability to communicate consent is legally significant.
Explanation 1 — Meaning of “Vagina”
Explanation 1 provides:
“For the purposes of this section, ‘vagina’ shall also include labia majora.”
The purpose is to ensure that wherever the term “vagina” appears in the provision, it is understood according to the meaning specifically provided by the BNS. Therefore, labia majora is expressly included within the statutory meaning of vagina for Section 63.
This Explanation should be read while interpreting clauses (a), (b) and other relevant parts of the section in which the term appears.
Explanation 2 — Meaning of Consent
Explanation 2 is one of the most important parts of Section 63. It provides:
“Consent means an unequivocal voluntary agreement”
The Explanation further states that the woman must communicate her willingness to participate in the specific sexual act through:
“words, gestures or any form of verbal or non-verbal communication”
Therefore, consent under Section 63 requires a clear and voluntary agreement to the particular sexual act.
The expression “specific sexual act” is particularly important. Consent is not a general or unlimited permission for sexual activity. The legal inquiry concerns whether the woman voluntarily communicated willingness to participate in the particular act in question.
The law also recognises different forms of communication. Consent may be communicated through spoken words, gestures or other verbal or non-verbal communication. Therefore, the statute does not require consent to be expressed exclusively through spoken language.
Explanation 2 — Physical Resistance Does Not Determine Consent
Explanation 2 contains an important proviso:
“a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.”
This means that absence of physical resistance, by itself, cannot be treated as consent.
A woman is not legally required to physically resist penetration in order for her lack of consent to be recognised. The existence of consent has to be assessed according to the statutory requirement of an unequivocal voluntary agreement.
Therefore, the law distinguishes between consent and mere non-resistance. A person may not physically resist an act, but that fact alone does not establish voluntary agreement to the sexual activity.
Exception 1 — Medical Procedure or Intervention
Exception 1 provides:
“A medical procedure or intervention shall not constitute rape.”
This exception excludes a medical procedure or medical intervention from the definition of rape.
The purpose is to distinguish legitimate medical treatment from criminal sexual conduct. A medical procedure may involve physical contact or conduct that, if viewed in isolation, could resemble an act mentioned in Section 63. However, where the conduct constitutes a genuine medical procedure or intervention, the statutory exception prevents it from being treated as rape under Section 63.
Thus, the definition of rape must be read subject to this express statutory exception.
Exception 2 — Sexual Intercourse or Sexual Acts by Husband With His Wife
Exception 2 provides:
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”
This is the marital exception contained in Section 63.
Under this exception, sexual intercourse or sexual acts by a man with his own wife do not constitute rape under Section 63 where the wife is not under eighteen years of age.
The age condition is expressly incorporated into the exception. Therefore, the exception cannot be read independently of the requirement that the wife must not be under eighteen.
This exception should also be distinguished from Section 67 BNS, which separately deals with sexual intercourse by a husband with his wife during separation. Section 67 creates a specific offence for the circumstances covered by that provision.
Rape as a Crime Against Society — State of Punjab v. Ramdev Singh, AIR 2004 SC 1290
Judgment
The Supreme Court observed that sexual violence is a dehumanising act and an unlawful invasion of a woman’s privacy and personal dignity. It causes humiliation and seriously affects her honour and self-esteem. The Court noted that the harm is not limited to physical injuries; rape can leave a lasting psychological and emotional impact on the victim, particularly where the victim is an innocent child or minor.
The Court further emphasised that rape leaves a deep and lasting injury to the victim’s dignity, honour and reputation. Consequently, rape cannot be viewed merely as an offence against an individual woman. It is also an offence against society as a whole, because it violates fundamental values of human dignity and social order.
Legal Principle
The important principle from Ramdev Singh is that rape is both an offence against the person and an offence affecting society because it violates the victim’s dignity, privacy and bodily integrity and may cause lasting physical and psychological harm.
Mala Fide Intention from the Beginning — Pramod Suryabhan Pawar v. State of Maharashtra
Facts of the Case
The appellant was alleged to have entered into a sexual relationship with the complainant on the assurance that he would marry her. An FIR was lodged alleging, among other offences, that the complainant’s consent to the sexual relationship had been obtained on the basis of the promise of marriage. The Bombay High Court declined to interfere with the FIR, after which the matter was brought before the Supreme Court.
The principal issue before the Supreme Court was whether the subsequent failure to fulfil a promise of marriage is, by itself, sufficient to establish that the woman’s consent was obtained under a misconception of fact and thereby amount to rape.
Judgment of the Supreme Court
The Supreme Court held that every failure to honour a promise of marriage does not amount to a false promise that invalidates consent. The Court distinguished between a promise that was genuinely made with an intention to marry but was subsequently not fulfilled and a promise that was dishonest from the outset and made without any intention of being fulfilled.
The Court stated that two conditions must be established to determine whether consent was vitiated by a misconception of fact arising from a promise to marry. First, the promise must have been false from the very beginning, made in bad faith and without an intention to fulfil it at the time it was made. Secondly, the false promise must have had a direct and immediate bearing on the woman’s decision to engage in the sexual act.
Thus, the relevant consideration is the intention of the person at the time the promise was made. If the person genuinely intended to marry but subsequently failed to do so because of circumstances that arose later, such subsequent failure would not, by itself, establish that the original consent was obtained through a misconception of fact.
The Supreme Court ultimately allowed the appeal and quashed the FIR, finding that the allegations did not fulfil the necessary legal requirements for treating the consensual relationship as rape merely on the basis of a promise of marriage.
Legal Principle
The judgment makes a clear distinction between a false promise to marry and a subsequent breach of a genuine promise. A promise of marriage will vitiate consent in the context of rape only where it is established that the promise was dishonest from its inception and that it had a direct connection with the woman’s decision to engage in the sexual act.
Section 64 BNS — Punishment for Rape
Section 64 of the Bharatiya Nyaya Sanhita, 2023 deals with the punishment for the offence of rape defined under Section 63. The provision is divided into a general punishment under Section 64(1) and an aggravated category under Section 64(2).
The basic idea is that every offence of rape attracts a serious minimum punishment, but where rape is committed in the specially specified circumstances of Section 64(2), the law treats the circumstances as aggravated and provides that imprisonment for life means imprisonment for the remainder of the offender’s natural life.
Section 64(1) — General Punishment for Rape
The Bare Act provides:
“Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.”
Section 64(1) provides the general punishment for a person who commits rape, where the case does not fall within any of the aggravated circumstances mentioned in Section 64(2).
The punishment is rigorous imprisonment for a minimum period of ten years. The imprisonment may extend to life imprisonment, and the offender is also liable to fine.
The expression “rigorous imprisonment of either description” refers to rigorous imprisonment as a form of imprisonment involving hard labour. The important point for examination purposes is that the statute fixes ten years as the minimum punishment under this provision.
For example, if A commits rape against a woman in circumstances covered by Section 63, but none of the special circumstances listed in Section 64(2) applies, A would ordinarily be punished under Section 64(1).
Section 64(1), therefore, is the general punishment provision, whereas Section 64(2) deals with specifically aggravated situations.
Section 64(2) — Aggravated Forms of Rape
The Bare Act begins Section 64(2) with:
“Whoever,—”
and then specifies circumstances from clauses (a) to (m).
These clauses do not create thirteen separate offences of rape. Rather, they identify particular circumstances in which rape is treated as an aggravated form of the offence and to which the punishment provided in Section 64(2) applies.
The circumstances generally relate to the offender’s official position, custodial authority, relationship of trust, control or dominance, the vulnerability of the victim, the circumstances in which the offence occurred, or the additional harm caused during the offence.
Section 64(2)(a) — Rape by a Police Officer
The Bare Act provides:
“being a police officer, commits rape,—”
This clause deals specifically with rape committed by a police officer. However, being a police officer alone is not sufficient for Section 64(2)(a). The rape must also fall within one of the three situations mentioned in sub-clauses (i), (ii) or (iii).
These three situations are based on the officer’s connection with a particular police station, the premises of a station house, or the woman’s police custody.
Situation 1 – Section 64(2)(a)(i) — Within the Limits of the Police Station to Which the Officer Is Appointed
The Bare Act provides:
“within the limits of the police station to which such police officer is appointed”
This applies where a police officer commits rape within the territorial limits of the police station to which that officer is appointed.
The provision therefore requires a connection between the officer and the police station. It is not enough that the accused is simply a police officer; the offence must occur within the geographical jurisdiction of the police station to which the officer is appointed.
For example, suppose a police officer is appointed to Police Station A, whose jurisdiction covers Areas X, Y and Z. If the officer commits rape at a location falling within Area X, the circumstances contemplated by Section 64(2)(a)(i) may be attracted.
The important feature here is the combination of the officer’s police status and his appointed police-station jurisdiction.
This clause is different from Section 64(2)(a)(ii), because clause (ii) does not refer to the police station to which the officer is appointed. It refers to the premises of any station house.
Situation 2- Section 64(2)(a)(ii) — In the Premises of Any Station House
The Bare Act provides:
“in the premises of any station house”
This clause applies where a police officer commits rape within the premises of a station house.
The focus here is on the place where the offence is committed. Unlike clause (i), it is not necessary to establish that the station house is the particular police station to which the accused officer is appointed.
For example, if a police officer appointed to Police Station A commits rape inside the premises of another station house, the situation may fall under Section 64(2)(a)(ii), because the statutory requirement under this clause concerns the premises of any station house.
The distinction is therefore important:
Clause (i) focuses on the territorial limits of the police station to which the officer is appointed.
Clause (ii) focuses on the premises of a station house.
Situation 3 – Section 64(2)(a)(iii) — Woman in Police Custody
The Bare Act provides:
“on a woman in such police officer’s custody or in the custody of a police officer subordinate to such police officer”
This clause applies where a police officer commits rape against a woman who is in the custody of that police officer or in the custody of a police officer subordinate to him.
The provision therefore covers two situations. The woman may be directly in the custody of the accused police officer, or she may be in the custody of a subordinate police officer.
For example, if a senior police officer commits rape against a woman who is formally in the custody of a subordinate officer, the provision expressly covers that situation.
The significance of this clause lies in the custodial relationship. A woman in police custody is subject to the authority and control of the police. Abuse of that custodial position to commit rape is therefore treated as an aggravated circumstance.
Section 64(2)(b) — Rape by a Public Servant on a Woman in Custody
The Bare Act provides:
“being a public servant, commits rape on a woman in such public servant’s custody or in the custody of a public servant subordinate to such public servant”
This clause applies where a public servant commits rape against a woman who is in the custody of that public servant or in the custody of a subordinate public servant.
The provision is broader than Section 64(2)(a), which specifically concerns police officers. Here, the offender must be a public servant, and the additional requirement is the specified custodial relationship.
For example, if a public servant has official custody of a woman and abuses that position to commit rape against her, Section 64(2)(b) may apply. The same applies where the woman is in the custody of a subordinate public servant and the accused public servant commits rape against her.
The aggravating circumstance is therefore the abuse of official custodial authority.
The mere fact that someone is a public servant does not by itself bring the case under this clause. The specified custody requirement must also exist.
Section 64(2)(c) — Rape by a Member of the Armed Forces in a Deployed Area
The Bare Act provides:
“being a member of the armed forces deployed in an area by the Central Government or a State Government commits rape in such area”
This clause applies where the offender is a member of the armed forces, has been deployed in an area by the Central Government or a State Government, and commits rape in that deployed area.
The provision therefore requires a connection between the offender’s deployment and the place where the rape is committed.
For example, if a member of the armed forces is officially deployed in Area X and commits rape in Area X during that deployment, the circumstance described in Section 64(2)(c) may apply.
The provision is particularly concerned with the abuse of authority in an area where armed forces personnel have been deployed by the government.
Section 64(2)(d) — Rape by Management or Staff of a Jail, Remand Home or Women’s or Children’s Institution
The Bare Act provides:
“being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution, commits rape on any inmate of such jail, remand home, place or institution”
This clause applies where a person belonging to the management or staff of a specified custodial or care institution commits rape against an inmate of that institution.
The institutions covered include a jail, remand home, other legally established place of custody, or a women’s or children’s institution.
The victim must be an inmate of that jail, remand home, place or institution.
For example, if a staff member of a legally established remand home commits rape against a woman who is an inmate of that remand home, the aggravated circumstance under Section 64(2)(d) may apply.
The aggravating factor here is the institutional relationship and authority. The staff member is expected to provide care, supervision or custodial management, while the inmate is dependent upon the institution.
The meaning of “women’s or children’s institution” is separately explained in the Explanation to Section 64 and is discussed below.
Section 64(2)(e) — Rape by Management or Staff of a Hospital
The Bare Act provides:
“being on the management or on the staff of a hospital, commits rape on a woman in that hospital”
This clause applies where a person belonging to the management or staff of a hospital commits rape against a woman who is in that hospital.
The provision therefore requires two important connections: the offender must belong to the management or staff of the hospital, and the woman must be in that hospital.
For example, if a member of hospital staff commits rape against a woman receiving treatment in the hospital, the aggravated circumstance under this clause may apply.
The provision recognises the special environment of a hospital, where patients may be physically dependent upon medical personnel and may place significant trust in hospital staff.
The statutory meaning of “hospital” is deliberately expanded by the Explanation so that it is not limited merely to the main hospital building.
Section 64(2)(f) — Rape by Relative, Guardian, Teacher or Person in Position of Trust or Authority
The Bare Act provides:
“being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman”
This clause covers rape committed by a person who has a specified relationship of trust or authority with the woman.
The provision expressly mentions a relative, guardian and teacher, and then extends to a person who occupies a position of trust or authority towards the woman.
For example, if a guardian entrusted with the care of a woman commits rape against her, the aggravated circumstance under this clause may apply. Similarly, the provision can cover a teacher who occupies the relevant position towards the woman.
The important feature is the relationship between the offender and the woman. The law treats the misuse of a relationship that carries trust, care or authority as an aggravating circumstance.
Section 64(2)(g) — Rape During Communal or Sectarian Violence
The Bare Act provides:
“commits rape during communal or sectarian violence”
This clause applies where rape is committed during communal or sectarian violence.
Unlike several preceding clauses, this provision does not depend upon the offender being a police officer, public servant, teacher, relative or other person holding a special position. The aggravating circumstance arises from the context in which the rape takes place.
For example, where communal violence is occurring between groups and the offender commits rape during that violence, the circumstances contemplated by Section 64(2)(g) may apply.
The provision therefore recognises the particularly serious nature of sexual violence committed in the environment of communal or sectarian conflict.
Section 64(2)(h) — Rape of a Woman Known to Be Pregnant
The Bare Act provides:
“commits rape on a woman knowing her to be pregnant”
This clause applies where the offender commits rape against a woman with knowledge that she is pregnant.
The word “knowing” is important. The provision specifically requires knowledge on the part of the offender regarding the woman’s pregnancy.
For example, if A knows that B is pregnant and nevertheless commits rape against her, the circumstance contemplated by Section 64(2)(h) may apply.
Thus, the aggravating feature is not simply the woman’s pregnancy. It is rape committed with knowledge of her pregnancy.
Section 64(2)(i) — Rape of a Woman Incapable of Giving Consent
The Bare Act provides:
“commits rape, on a woman incapable of giving consent”
This clause applies where rape is committed against a woman who is incapable of giving consent.
The provision treats the victim’s inability to provide consent as an aggravating circumstance because such a woman is particularly vulnerable to sexual exploitation.
For example, where a woman is legally incapable of giving consent and the accused commits rape against her, the circumstances may fall under Section 64(2)(i), subject to the facts of the case and the requirements of Section 63.
This clause should not be mechanically treated as identical to every circumstance concerning consent under Section 63. Section 63 determines when the sexual act constitutes rape, whereas Section 64(2)(i) identifies incapacity to consent as an aggravating circumstance for punishment.
Section 64(2)(j) — Rape by a Person in a Position of Control or Dominance
The Bare Act provides:
“being in a position of control or dominance over a woman, commits rape on such woman”
This clause applies where the offender occupies a position of control or dominance over the woman and commits rape against her.
The important factor is the existence of a relationship in which the offender exercises significant control or dominance over the woman.
For example, where a person has substantial control over a woman’s circumstances and abuses that position to commit rape, the case may fall within Section 64(2)(j).
The focus here is specifically on control or dominance, rather than merely the existence of a general relationship of trust or authority.
This is distinct from Section 64(2)(f), which expressly concerns relationships such as relative, guardian, teacher, trust or authority. Clause (j) specifically addresses control or dominance.
Section 64(2)(k) — Rape of a Woman Suffering from Mental or Physical Disability
The Bare Act provides:
“commits rape on a woman suffering from mental or physical disability”
This clause applies where rape is committed against a woman who is suffering from a mental or physical disability.
The aggravated treatment reflects the particular vulnerability that may arise from such disability.
For example, where a woman suffering from a physical disability is subjected to rape, the circumstances contemplated by Section 64(2)(k) may apply.
The clause specifically identifies mental or physical disability. Therefore, the focus is on the victim’s disability rather than on the offender’s relationship with her.
Section 64(2)(l) — Rape Accompanied by Serious Physical Harm
The Bare Act provides:
“while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman”
This clause deals with rape accompanied by serious additional physical harm.
The provision identifies four forms of aggravated harm: grievous bodily harm, maiming, disfigurement, and endangering the life of the woman.
For example, if during the commission of rape the offender causes injuries amounting to grievous bodily harm, the aggravated circumstance under Section 64(2)(l) may apply.
The important distinction is that the additional harm must occur while committing rape. The clause therefore focuses on the serious physical consequences accompanying the rape itself.
Unlike clauses based on the offender’s status or the victim’s relationship with the offender, this clause is based on the additional physical harm caused during the offence.
Section 64(2)(m) — Repeated Rape on the Same Woman
The Bare Act provides:
“commits rape repeatedly on the same woman”
This clause applies where the offender repeatedly commits rape against the same woman.
The aggravating circumstance is therefore the repeated nature of the offence and the fact that the same woman is repeatedly subjected to rape.
For example, if an offender repeatedly commits rape against the same woman on separate occasions, the circumstances contemplated by Section 64(2)(m) may arise.
The emphasis is specifically on repeated rape of the same woman, making this clause different from a situation involving rape of different victims.
Punishment Under Section 64(2)
After listing clauses (a) to (m), the provision prescribes a common punishment:
“shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.”
The minimum punishment remains ten years of rigorous imprisonment.
However, Section 64(2) expressly clarifies the meaning of life imprisonment for these aggravated cases. Where the court imposes imprisonment for life under this provision, it means imprisonment for the remainder of that person’s natural life.
The offender is also liable to fine.
Explanation to Section 64 — Meaning of “Armed Forces”
The Bare Act provides:
“‘armed forces’ means the naval, army and air forces and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government”
This Explanation is relevant primarily to Section 64(2)(c).
The expression “armed forces” is given a statutory meaning wider than simply referring to the three traditional services. It expressly includes the naval, army and air forces and also covers members of armed forces constituted under any law in force.
The Explanation further includes paramilitary forces and auxiliary forces where they are under the control of the Central or State Government.
Therefore, when applying Section 64(2)(c), the expression must be understood according to this statutory definition rather than merely according to its ordinary meaning.
Explanation to Section 64 — Meaning of “Hospital”
The Bare Act provides:
“‘hospital’ means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation”
This Explanation is relevant to Section 64(2)(e).
The definition extends beyond the main hospital building. The word “precincts” covers the premises or surrounding area forming part of the hospital.
The definition also includes the premises of institutions where people are received and treated during convalescence, meaning the period of recovery after illness or treatment. It further includes institutions dealing with persons who require medical attention or rehabilitation.
For example, if a person receiving rehabilitation treatment in an institution falling within this statutory definition is subjected to rape by a member of its management or staff, the meaning of “hospital” under this Explanation becomes relevant.
Explanation to Section 64 — Meaning of “Police Officer”
The Bare Act provides:
“‘police officer’ shall have the same meaning as assigned to the expression ‘police’ under the Police Act, 1861”
This Explanation is relevant to Section 64(2)(a).
Rather than creating an independent definition of “police officer” within Section 64, the BNS adopts the meaning assigned to the expression “police” under the Police Act, 1861.
Therefore, when determining whether a person falls within the expression “police officer” for Section 64(2)(a), the statutory meaning referred to by this Explanation must be taken into account.
Explanation to Section 64 — Meaning of “Women’s or Children’s Institution”
The Bare Act provides:
“‘women’s or children’s institution’ means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or an institution called by any other name, which is established and maintained for the reception and care of women or children”
This Explanation relates to Section 64(2)(d).
The provision makes it clear that the name of the institution is not decisive. An institution may be called an orphanage, a home for neglected women or children, a widow’s home, or something else entirely.
What matters is its function and purpose: it must be established and maintained for the reception and care of women or children.
For example, if an institution is formally called a “Women Care Centre” rather than a “Women’s Home”, it may still fall within the definition if it is established and maintained for receiving and caring for women.
The Explanation therefore prevents the provision from being narrowly interpreted merely on the basis of the name given to an institution.
Two-Finger Test – Lillu & Ors. v. State of Haryana, AIR 2013 SC 1784
The Supreme Court observed that the two-finger test and the manner in which its findings are interpreted violate the privacy, physical and mental integrity, and dignity of a rape survivor. The Court made it clear that the test cannot be used to draw conclusions about a survivor’s sexual history or character. Even where the test report is affirmative, it cannot, by itself, be treated as evidence or presumed proof of consent.
Consensual Physical Relationship Does Not Automatically Amount to Rape – Dhruvaram Murlidhar Sonar v. State of Maharashtra, AIR 2019 SC 327,
The Supreme Court explained that where a woman voluntarily enters into a sexual relationship with a man because of love, affection or mutual desire, and her consent is not the result of a misconception of fact, the relationship cannot automatically be treated as rape.
The Court recognised that a genuine intention to marry may exist at the beginning of a relationship, but circumstances beyond the accused’s control may later make the marriage impossible. Therefore, the mere failure to marry subsequently does not by itself establish rape.
The Court emphasised the need to distinguish between a genuinely consensual sexual relationship and a relationship in which the accused had a dishonest intention from the very beginning and made a false promise of marriage merely to obtain sexual relations. The court must carefully examine the circumstances and determine whether the promise was genuine when it was made or whether it was only a deceptive means to obtain the woman’s consent.
Thus, where the parties were in a voluntary and consensual physical relationship, and the essential ingredients of rape are not established, the relationship would not constitute rape merely because the promised marriage did not ultimately take place.
Section 65 BNS — Punishment for Rape in Certain Cases
Section 65 of the Bharatiya Nyaya Sanhita, 2023 provides enhanced punishment where rape is committed against a girl below sixteen years of age or below twelve years of age. The provision creates two different age-based categories, with a more severe punishment for the second category.
The important distinction is that Section 65 is concerned with the age of the victim, whereas Section 64 generally deals with punishment for rape and Section 64(2) deals with specified aggravated circumstances.
Section 65(1) — Rape of a Woman Under Sixteen Years of Age
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“Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.”
Section 65(1) applies when rape is committed against a woman who is under sixteen years of age.
The punishment is considerably higher than the general punishment under Section 64(1). The offender must receive rigorous imprisonment for at least twenty years. The imprisonment may extend to life imprisonment, and the provision expressly clarifies that life imprisonment means imprisonment for the remainder of the offender’s natural life.
The offender is also liable to fine.
The important point is that the statutory age threshold here is sixteen years. Therefore, when the victim is below sixteen, Section 65(1) becomes relevant, subject to the other requirements of the offence.
Example
Suppose A commits rape against a girl who is 15 years old. Since she is below sixteen years of age, the punishment provision under Section 65(1) is attracted. The court may impose rigorous imprisonment of not less than twenty years, which may extend to imprisonment for the remainder of the offender’s natural life, along with fine.
First Proviso to Section 65(1) — Nature and Purpose of Fine
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“Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim”
This proviso places a specific requirement on the fine imposed under Section 65(1). The fine must be just and reasonable, particularly having regard to the victim’s medical expenses and rehabilitation.
Therefore, the fine is not intended merely as an additional financial punishment for the offender. The statutory provision connects it with the financial needs arising from the consequences of the offence, particularly the victim’s treatment and rehabilitation.
For example, where the victim requires substantial medical treatment and rehabilitation following the offence, the court must ensure that the fine imposed satisfies the statutory requirement of being just and reasonable for those purposes.
Second Proviso to Section 65(1) — Fine to Be Paid to the Victim
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“Provided further that any fine imposed under this sub-section shall be paid to the victim.”
This proviso deals with the destination of the fine.
Where a fine is imposed under Section 65(1), the statutory provision requires that the amount be paid to the victim.
Thus, Section 65(1) creates a connection between the fine and the victim’s financial needs. The first proviso concerns the purpose and reasonableness of the fine, while the second proviso specifies who should receive the fine.
Example
If the court imposes a fine under Section 65(1), the amount is required to be paid to the victim rather than simply being treated as an ordinary fine without the statutory direction concerning its payment.
Section 65(2) — Rape of a Woman Under Twelve Years of Age
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“Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine or with death”
Section 65(2) deals with the more serious age category of victims who are under twelve years of age.
The minimum punishment remains twenty years of rigorous imprisonment. The imprisonment may extend to imprisonment for the remainder of the offender’s natural life.
However, Section 65(2) goes further than Section 65(1) by providing an additional sentencing possibility: the offender may be punished with death.
Thus, the punishment framework under Section 65(2) is:
minimum twenty years’ rigorous imprisonment → life imprisonment for the remainder of natural life → or death, along with the fine prescribed by the provision.
Example
Suppose A commits rape against a girl who is 11 years old. Since she is under twelve years of age, Section 65(2) applies. The court may impose rigorous imprisonment of not less than twenty years, life imprisonment for the remainder of the offender’s natural life, or the punishment of death, in accordance with the statutory framework.
The possibility of death under this subsection makes it more severe than Section 65(1).
First Proviso to Section 65(2) — Fine for Medical Expenses and Rehabilitation
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“Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim”
The first proviso to Section 65(2) operates in the same manner as the corresponding proviso under Section 65(1).
The fine imposed must be just and reasonable and should serve the purpose of meeting the victim’s medical expenses and rehabilitation needs.
The provision therefore requires the court to consider the financial consequences suffered by the victim while determining the appropriate fine.
Second Proviso to Section 65(2) — Fine to Be Paid to the Victim
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“Provided further that any fine imposed under this sub-section shall be paid to the victim.”
This proviso requires that any fine imposed under Section 65(2) be paid to the victim.
Consequently, the fine under Section 65(2) has both a punitive and victim-oriented dimension: it forms part of the sentence imposed upon the offender while the statute specifically directs that the amount should reach the victim.
Difference Between Section 65(1) and Section 65(2)
| Basis | Section 65(1) BNS | Section 65(2) BNS |
|---|---|---|
| Victim’s Age | Woman under 16 years | Woman under 12 years |
| Nature | Rape of a woman below 16 years | Rape of a woman below 12 years |
| Minimum Punishment | Rigorous imprisonment of not less than 20 years | Rigorous imprisonment of not less than 20 years |
| Maximum Punishment | Imprisonment for life, meaning remainder of the offender’s natural life | Imprisonment for life, meaning remainder of the offender’s natural life, or death |
| Fine | Offender is liable to fine | Offender is liable to fine |
| Purpose of Fine | Fine must be just and reasonable to meet medical expenses and rehabilitation of the victim | Fine must be just and reasonable to meet medical expenses and rehabilitation of the victim |
| Who Receives the Fine? | Fine imposed must be paid to the victim | Fine imposed must be paid to the victim |
| Key Distinction | Applies to victims below 16 years | Applies to victims below 12 years and carries the additional possibility of death penalty |
| Easy Revision | Under 16 → 20 years to life + fine | Under 12 → 20 years to life/death + fine |
Section 66 BNS — Punishment for Causing Death or Persistent Vegetative State of the Victim
Section 66 of the Bharatiya Nyaya Sanhita, 2023 deals with a particularly serious situation where, during the commission of rape, the offender causes an injury that results in either the death of the woman or her being placed in a persistent vegetative state.
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“Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of section 64 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death.”
When Does Section 66 Apply?
Section 66 applies when the accused has committed an offence punishable under Section 64(1) or Section 64(2) and, during the commission of that offence, causes an injury that results in the woman’s death or causes her to enter a persistent vegetative state.
Therefore, the provision requires a connection between the rape and the injury. It is not enough that the victim dies or enters a persistent vegetative state at some unrelated time. The injury must be inflicted “in the course of such commission” and must cause the death or persistent vegetative state.
For example, suppose A commits rape against a woman and, during the commission of the rape, inflicts a serious injury that ultimately causes her death. The aggravated punishment under Section 66 may apply because the death resulted from an injury inflicted during the commission of the rape.
Similarly, if the injury caused during the rape leaves the woman in a persistent vegetative state, Section 66 may apply even though the woman survives.
Meaning of “Persistent Vegetative State”
A persistent vegetative state refers to a serious medical condition in which a person remains alive but has lost higher neurological functions necessary for conscious awareness and meaningful interaction with the surrounding environment.
In the context of Section 66, the important point is that the victim does not necessarily have to die. If the injury inflicted during the rape results in a persistent vegetative state, the provision can still be attracted.
Punishment Under Section 66
The Bare Act prescribes:
“shall be punished with rigorous imprisonment for a term which shall not be less than twenty years”
The punishment begins with a minimum of twenty years of rigorous imprisonment. Thus, the court cannot impose a sentence below twenty years under this provision.
The provision further states:
“but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death.”
This means that the punishment may extend to imprisonment for life, with the statute specifically clarifying that such life imprisonment means imprisonment for the remainder of the offender’s natural life.
Alternatively, the provision permits the court to impose the death penalty, subject to the applicable principles governing capital punishment.
Simple Example
Suppose A commits rape against a woman. During the commission of the rape, A inflicts a serious injury upon her. That injury causes her death. Since the death resulted from an injury inflicted in the course of the commission of rape, Section 66 becomes applicable.
If the same injury instead leaves the woman in a persistent vegetative state, Section 66 can also apply even though she remains alive.
Section 67 BNS — Sexual Intercourse by Husband with His Wife During Separation
Section 67 of the Bharatiya Nyaya Sanhita, 2023 deals with a specific situation where a husband has sexual intercourse with his wife without her consent while she is living separately from him.
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“Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.”
The provision applies when the woman is legally the wife of the accused, but the spouses are living separately, and the husband engages in sexual intercourse with her without her consent.
The expression “living separately” is important. The separation does not necessarily have to result from a formal court order. Section 67 expressly covers separation “whether under a decree of separation or otherwise.” Therefore, the provision can apply whether the spouses are living separately pursuant to a judicial decree or because they are otherwise living apart.
For example, suppose a husband and wife are living separately and the wife does not consent to sexual intercourse. If the husband nevertheless has sexual intercourse with her, the conduct may fall within Section 67.
Consent Is Essential
The central requirement of Section 67 is that the sexual intercourse must be without the wife’s consent.
The fact that the parties are married does not remove the requirement of consent under this provision. Where the wife is living separately, sexual intercourse against her consent is specifically made punishable by Section 67.
Therefore, the provision is concerned with non-consensual sexual intercourse between spouses who are living separately.
Meaning of “Sexual Intercourse”
Section 67 contains an Explanation defining the expression “sexual intercourse”.
Bare Act Explanation
“Explanation.—In this section, ‘sexual intercourse’ shall mean any of the acts mentioned in clauses (a) to (d) of section 63.”
This means that “sexual intercourse” for Section 67 is not limited to one particular form of sexual penetration. The expression incorporates the acts described in Section 63(a) to (d).
Section 63(a) covers penetration by the penis into the vagina, mouth, urethra or anus, including circumstances where the woman is made to perform such an act with the man or another person.
Section 63(b) covers insertion of an object or a part of the body, other than the penis, into the vagina, urethra or anus, including situations where the woman is made to perform such an act.
Section 63(c) covers manipulation of any part of the woman’s body in a manner that causes penetration into the vagina, urethra, anus or another part of her body.
Section 63(d) covers applying the mouth to the vagina, anus or urethra, including circumstances where the woman is made to perform such an act.
Thus, the Explanation ensures that the expression “sexual intercourse” under Section 67 covers all the acts referred to in Section 63(a)–(d).
Punishment Under Section 67
The Bare Act provides:
“shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.”
The punishment prescribed is imprisonment of either description for a minimum of two years, which may extend to seven years, along with liability to fine.
Therefore, compared with the general punishment for rape under Section 64, Section 67 creates a separate and specifically limited offence dealing with non-consensual sexual intercourse by a husband with his wife while they are living separately.
Simple Example
Suppose A and B are legally married but have been living separately for some time. B does not consent to sexual intercourse, but A nevertheless engages in sexual intercourse with her. Since B is A’s wife, the spouses are living separately, and the sexual intercourse is without her consent, the conduct falls within the framework of Section 67 BNS, provided the statutory requirements are established.
Section 68 BNS — Sexual Intercourse by a Person in Authority
Section 68 of the Bharatiya Nyaya Sanhita, 2023 deals with sexual intercourse obtained by a person who occupies a position of authority, trust, custody or responsibility over a woman. The provision is intended to address situations where such a person abuses his position to induce or seduce the woman to have sexual intercourse.
An important feature of Section 68 is that the sexual intercourse must not amount to rape. If the facts satisfy the ingredients of rape under Section 63, the case is dealt with under the applicable rape provisions. Section 68 covers the separate situation where the conduct does not amount to rape but the offender has abused a position of authority or trust to obtain sexual intercourse.
Bare Act — Main Provision
“Whoever, being— (a) in a position of authority or in a fiduciary relationship; or (b) a public servant; or (c) superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force, or a women’s or children’s institution; or (d) on the management of a hospital or being on the staff of a hospital, abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape…”
The provision therefore requires a combination of a specified position or relationship, abuse of that position, and sexual intercourse with the woman. The sexual intercourse must result from the offender’s abuse of his position to induce or seduce the woman, while the circumstances must not amount to rape.
Section 68(a) — Person in a Position of Authority or Fiduciary Relationship
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“in a position of authority or in a fiduciary relationship”
This clause covers a person who occupies a position of authority over the woman or stands in a fiduciary relationship with her.
A position of authority means a situation where one person has a legally or practically significant degree of power, influence or control over another person. A fiduciary relationship, on the other hand, involves a relationship based upon trust and confidence, where one person is expected to act responsibly towards the interests of another.
However, merely occupying such a position is not sufficient. The person must abuse that position or fiduciary relationship to induce or seduce the woman to have sexual intercourse with him.
For example, if a person who has a position of authority over a woman uses that authority or influence to persuade her into sexual intercourse, and the circumstances do not amount to rape, Section 68 may become applicable.
The key idea is therefore abuse of authority or trust for obtaining sexual intercourse.
Section 68(b) — Public Servant
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“a public servant”
A public servant who falls within this clause can be liable under Section 68 when he abuses his official position to induce or seduce a woman to have sexual intercourse with him, provided the other requirements of the provision are satisfied.
For example, if a public servant uses his official position and influence over a woman who is under his charge to induce her to engage in sexual intercourse, and the conduct does not constitute rape under Section 63, Section 68 may apply.
The important point is that the offence is not created merely because the accused is a public servant. There must be an abuse of the position connected with the sexual intercourse.
Section 68(c) — Superintendent or Manager of a Custodial or Women’s/Children’s Institution
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“superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force, or a women’s or children’s institution”
The provision recognises that persons managing such institutions exercise authority over inmates or residents. If such a person abuses that position to induce or seduce a woman to have sexual intercourse with him, Section 68 may apply, provided the conduct does not amount to rape.
For example, if a person managing a legally established custodial institution uses his institutional authority over a woman under his charge to induce her to have sexual intercourse with him, the conduct can fall within Section 68.
The emphasis here is on the institutional position and the authority connected with it.
Section 68(d) — Management or Staff of a Hospital
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“on the management of a hospital or being on the staff of a hospital”
The person must abuse his position to induce or seduce a woman who falls within the situations specified by Section 68 to have sexual intercourse with him.
For example, if a member of hospital staff abuses the position arising from his professional or institutional role to induce a woman present in the hospital to have sexual intercourse with him, and the conduct does not constitute rape, Section 68 may apply.
The significance of this clause is the special position of trust and responsibility existing within a hospital environment.
Meaning of “Abuses Such Position or Fiduciary Relationship”
The Bare Act uses the expression:
“abuses such position or fiduciary relationship”
This is an important requirement of Section 68.
The offence is not established merely because the accused happens to be a public servant, hospital employee, superintendent, manager or person in a fiduciary relationship. There must be an abuse of that position or relationship for the purpose contemplated by the section.
In other words, the person’s position must play a significant role in obtaining the sexual intercourse.
For example, if a person uses his official authority to influence a woman who is under his charge and thereby induces her to engage in sexual intercourse, the required abuse of position may be established.
Meaning of “Induce or Seduce”
The Bare Act provides:
“to induce or seduce any woman…”
The provision covers sexual intercourse obtained by inducing or seducing the woman through abuse of the specified position or relationship.
The focus is therefore on the manner in which the offender uses his authority, trust or institutional position to influence the woman’s decision to engage in sexual intercourse.
The provision does not require the sexual intercourse to amount to rape. In fact, the section expressly states that the sexual intercourse must be “not amounting to the offence of rape.”
Woman in His Custody, Under His Charge or Present in the Premises
The Bare Act provides:
“any woman either in his custody or under his charge or present in the premises”
This portion identifies the circumstances in which the woman may be connected with the offender.
The woman may be in the custody of the accused, meaning the accused has legal or institutional control over her.
She may instead be under his charge, meaning that the accused has responsibility, supervision or authority over her.
The provision also covers a woman who is present in the premises, which is particularly relevant to situations involving places such as hospitals and institutions covered by the section.
Thus, the woman does not necessarily have to be formally detained or physically confined. The section covers the different relationships and circumstances expressly mentioned in the provision.
Sexual Intercourse Must Not Amount to Rape
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“such sexual intercourse not amounting to the offence of rape”
This is one of the most important features of Section 68.
Section 68 is a separate offence from rape. If the facts establish rape under Section 63, the conduct must be dealt with under the applicable rape provisions. Section 68 applies where the sexual intercourse does not satisfy the legal requirements of rape, but nevertheless results from the abuse of the specified position or relationship.
This distinction is important for understanding the relationship between Sections 63, 64 and 68.
Punishment Under Section 68
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“shall be punished with rigorous imprisonment of either description for a term which shall not be less than five years, but which may extend to ten years, and shall also be liable to fine.”
The punishment under Section 68 is rigorous imprisonment of not less than five years, which may extend to ten years, along with liability to fine.
Thus, the statutory minimum punishment is five years.
Explanation 1 — Meaning of “Sexual Intercourse”
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“Explanation 1.—In this section, ‘sexual intercourse’ shall mean any of the acts mentioned in clauses (a) to (d) of section 63.”
This Explanation gives Section 68 its own statutory meaning of “sexual intercourse.”
It incorporates the acts described in Section 63(a) to (d). Therefore, the expression is not restricted to one particular form of sexual activity.
Section 63(a) covers penile penetration into the vagina, mouth, urethra or anus, including situations where the woman is made to perform such an act with the man or another person.
Section 63(b) covers insertion of an object or a body part, other than the penis, into the vagina, urethra or anus, including situations where the woman is made to perform such an act.
Section 63(c) covers manipulation of a part of the woman’s body resulting in penetration into the vagina, urethra, anus or another part of her body.
Section 63(d) covers applying the mouth to the vagina, anus or urethra, including circumstances where the woman is made to perform such an act.
Therefore, whenever Section 68 uses the expression “sexual intercourse,” these four categories from Section 63 are incorporated into its meaning.
Explanation 2 — Application of Explanation 1 to Section 63
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“Explanation 2.—For the purposes of this section, Explanation 1 to section 63 shall also be applicable.”
This Explanation incorporates Explanation 1 to Section 63 into Section 68.
Explanation 1 to Section 63 provides that:
“vagina” shall also include labia majora
Therefore, while interpreting the acts referred to in Section 63(a) to (d) for the purposes of Section 68, the expression “vagina” includes the labia majora as provided by Section 63’s Explanation 1.
The purpose of Explanation 2 is therefore to ensure that the statutory meaning given in Section 63 is also available when interpreting Section 68.
Explanation 3 — Meaning of “Superintendent”
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“‘Superintendent’, in relation to a jail, remand home or other place of custody or a women’s or children’s institution, includes a person holding any other office in such jail, remand home, place or institution by virtue of which such person can exercise any authority or control over its inmates.”
This Explanation expands the meaning of “superintendent.”
The term is not restricted to a person whose official designation is literally “Superintendent.” A person holding another office may also fall within the expression if, because of that office, the person has authority or control over the inmates of the jail, remand home, custodial place or women’s or children’s institution.
For example, suppose a person has the official designation of “Director” or another title but, by virtue of that position, exercises authority or control over inmates of a women’s institution. That person may fall within the statutory meaning of “superintendent” for Section 68.
The Explanation therefore focuses on the actual authority or control exercised over inmates, rather than merely the person’s job title.
Explanation 4 — Meaning of “Hospital” and “Women’s or Children’s Institution”
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“The expressions ‘hospital’ and ‘women’s or children’s institution’ shall respectively have the same meanings as in clauses (b) and (d) of the Explanation to sub-section (2) of section 64.”
This Explanation does not create new definitions of these expressions. Instead, it adopts the definitions already provided in Section 64(2)’s Explanation.
For the meaning of **“hospital,” Section 64 explains that it includes the hospital premises and also the premises of institutions for receiving and treating persons during convalescence or persons requiring medical attention or rehabilitation.
Therefore, Section 68’s reference to a hospital extends beyond merely the main hospital building.
For “women’s or children’s institution,” Section 64 defines it broadly to include an institution, regardless of what it is called, that is established and maintained for the reception and care of women or children. This can include institutions described as orphanages, homes for neglected women or children, widow’s homes, or institutions having other names but serving the same statutory purpose.
Thus, Explanation 4 ensures that the expressions “hospital” and “women’s or children’s institution” have the same statutory meaning in Sections 68 and 64(2).
Section 69 BNS — Sexual Intercourse by Employing Deceitful Means, etc.
Section 69 of the Bharatiya Nyaya Sanhita, 2023 creates a separate offence where a man obtains sexual intercourse with a woman by using deceitful means or by making a promise to marry without intending to fulfil that promise, provided that the sexual intercourse does not amount to rape.
This section is important because it distinguishes between conduct that amounts to rape under Section 63 and other deceptive conduct that is specifically criminalised under Section 69.
Bare Act — Main Provision
“Whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.”
The provision contains two principal ways in which the offence can be committed. The first is sexual intercourse obtained through deceitful means. The second is sexual intercourse obtained by making a promise to marry when the person had no intention of fulfilling that promise.
In both situations, there is an important limitation: the sexual intercourse must be “not amounting to the offence of rape.” Therefore, Section 69 operates as a separate offence where the facts do not satisfy the ingredients of rape under Section 63.
Sexual Intercourse by Deceitful Means
The first part of Section 69 covers sexual intercourse obtained:
“by deceitful means”
The expression refers to situations where the offender uses deception or dishonest representations to obtain sexual intercourse.
The Explanation to Section 69 specifically identifies certain conduct that falls within the expression “deceitful means.”
For example, where a person makes a false representation concerning employment or promotion and uses that representation to induce a woman to engage in sexual intercourse, the conduct may fall within Section 69, subject to the other statutory requirements.
The deception must therefore be connected with the sexual intercourse contemplated by the provision.
Promise to Marry Without Intention to Fulfil It
The second part of Section 69 specifically covers:
“by making promise to marry to a woman without any intention of fulfilling the same”
This provision is concerned with a false promise of marriage made without an intention to fulfil it.
The crucial element is the intention at the time the promise is made. If a person makes a promise to marry while already having no intention of fulfilling that promise and uses that promise to obtain sexual intercourse, Section 69 may apply, provided the sexual intercourse does not amount to rape.
This is different from a situation where a person genuinely intends to marry at the beginning but later does not marry because circumstances change.
For example, if A promises B that he will marry her, but A has already decided that he will never marry her and uses the promise merely to obtain sexual intercourse, the conduct may fall within Section 69.
On the other hand, if A genuinely intended to marry B when he made the promise but subsequently the marriage could not take place because of circumstances that arose later, the mere failure to marry does not automatically establish that A made the promise without intention of fulfilling it.
Sexual Intercourse Must Not Amount to Rape
The Bare Act expressly states:
“such sexual intercourse not amounting to the offence of rape”
This is an important limitation on Section 69.
Section 69 should not be treated as an alternative punishment for every case involving a false promise or deception. If the circumstances satisfy the ingredients of rape under Section 63, the conduct must be considered under the applicable rape provisions.
Section 69 addresses the separate category where sexual intercourse occurs through the specified deceitful conduct but does not constitute rape.
Explanation — Meaning of “Deceitful Means”
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“Explanation.—‘deceitful means’ shall include inducement for, or false promise of employment or promotion, or marrying by suppressing identity.”
The Explanation gives specific examples of what is included within “deceitful means.” It identifies three important forms of deception.
Inducement for Employment
The Explanation includes:
“inducement for … employment”
This covers a situation where a person uses an inducement relating to employment as the deceptive means connected with obtaining sexual intercourse.
For example, if A falsely represents to B that he will secure employment for her and uses that representation as an inducement to obtain sexual intercourse, the conduct may fall within the scope of Section 69, subject to the statutory requirements.
The important point is that the employment-related inducement forms part of the deceitful means contemplated by the Explanation.
False Promise of Employment or Promotion
The Explanation further includes:
“false promise of employment or promotion”
This covers a false promise relating to either obtaining employment or receiving a promotion.
For example, if a person falsely promises a woman that he will arrange her promotion and uses that false promise to obtain sexual intercourse, the conduct may come within Section 69.
The provision therefore recognises employment and career-related deception as a specific form of deceitful means.
Marrying by Suppressing Identity
The Explanation also provides:
“or marrying by suppressing identity.”
This refers to a situation where a person enters into marriage while concealing or suppressing his identity.
The significance of this provision is that the person’s identity itself is relevant to the woman’s decision to enter into the relationship or marriage. Concealing that identity may therefore constitute the specified deceitful means contemplated by Section 69.
For example, if a person deliberately conceals his true identity while marrying a woman and the conduct satisfies the other requirements of Section 69, the provision may become applicable.
Punishment Under Section 69
The Bare Act provides:
“shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.”
Unlike Section 64, which prescribes a minimum term of imprisonment, Section 69 provides imprisonment up to ten years.
The punishment may therefore extend to ten years’ imprisonment, along with liability to fine.
Section 69 and False Promise to Marry — Important Distinction
The most important concept for understanding Section 69 is the distinction between a false promise from the beginning and a genuine promise that is subsequently not fulfilled.
If a person never intended to marry when he made the promise but made it merely to obtain sexual intercourse, the statutory requirement concerning a promise made “without any intention of fulfilling the same” may be satisfied.
However, if the person genuinely intended to marry when the promise was made but later changed his decision or circumstances prevented the marriage, the mere subsequent failure to marry does not automatically establish the offence under Section 69.
Therefore, the focus is substantially on the intention existing when the promise was made.
Section 69 vs Section 63 BNS — Simple Distinction
| Basis | Section 63 BNS — Rape | Section 69 BNS — Sexual Intercourse by Deceitful Means, etc. |
|---|---|---|
| Nature of offence | Deals with circumstances in which sexual acts legally constitute rape. | Deals with sexual intercourse obtained through specified deceitful means or a promise to marry without intention to fulfil it. |
| Consent | Concerns circumstances where consent is absent, invalid, or obtained under circumstances specified in Section 63. | The sexual intercourse is obtained through the deception or promise specified in Section 69. |
| Promise to marry | A false promise may be relevant where it results in consent being vitiated under the applicable rape provision. | Specifically covers a promise to marry made without intention of fulfilling it, provided the sexual intercourse does not amount to rape. |
| Deceitful means | Deception may be relevant to the circumstances constituting rape, depending on the facts and statutory requirements. | Specifically criminalises sexual intercourse obtained by deceitful means, including the means mentioned in the Explanation. |
| Relationship with rape | This is the rape provision. | Expressly applies where the sexual intercourse is “not amounting to the offence of rape.” |
| Key distinction | The conduct satisfies the statutory ingredients of rape under Section 63. | The conduct involves specified deception, but does not satisfy the ingredients of rape. |
| Exam focus | Rape = Section 63 | Deceitful means/false promise + sexual intercourse + not rape = Section 69 |
Section 70 BNS — Gang Rape
Section 70 of the Bharatiya Nyaya Sanhita, 2023 deals with gang rape. The provision creates a special rule of liability where a woman is raped by one or more persons forming a group or acting in furtherance of a common intention.
The section contains two separate situations. Section 70(1) applies generally, while Section 70(2) applies where the woman is under eighteen years of age. The punishment under Section 70(2) is more severe.
Section 70(1) — Gang Rape of a Woman
Bare Act
“Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape…”
The important feature of Section 70(1) is that where the statutory conditions are satisfied, each person forming part of the group or acting in furtherance of the common intention is deemed to have committed rape.
The provision therefore does not restrict liability only to the person who physically commits the sexual act. Where persons constitute a group or act in furtherance of a common intention in the commission of the rape, each of those persons can be treated as having committed the offence.
Meaning of “Constituting a Group”
The expression:
“constituting a group”
covers a situation where multiple persons are involved together in the commission of the rape.
For example, if several persons act together as a group and the woman is raped in circumstances covered by Section 70, the liability under the provision can extend to each person forming that group.
The emphasis is on the collective participation contemplated by the section, rather than requiring every member of the group to personally perform the sexual act.
“Acting in Furtherance of a Common Intention”
The Bare Act also covers persons:
“acting in furtherance of a common intention”
This means that persons may be liable under Section 70 where they act together pursuant to a shared intention in relation to the commission of the offence.
For example, if A and B have a common intention to commit rape and act together to carry out that intention, Section 70 may apply to both, subject to proof of the required facts.
The important point is that the law recognises collective criminal responsibility where the participants act pursuant to the common intention contemplated by the provision.
“Each of Those Persons Shall Be Deemed to Have Committed the Offence of Rape”
Bare Act
“each of those persons shall be deemed to have committed the offence of rape”
This is the central legal effect of Section 70(1).
Where the requirements of the provision are established, each qualifying participant is treated as having committed rape. Thus, the law does not require the prosecution to establish that every participant personally carried out the physical act of penetration.
For example, if A, B and C constitute a group and act in furtherance of a common intention in committing the rape of a woman, each of them may be treated as having committed the offence under Section 70.
Punishment Under Section 70(1)
Bare Act
“shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, and with fine”
The punishment under Section 70(1) is significantly higher than the ordinary punishment prescribed under Section 64(1).
The offender must receive rigorous imprisonment of at least twenty years. The imprisonment may extend to life imprisonment, and the section expressly clarifies that such life imprisonment means imprisonment for the remainder of the offender’s natural life.
In addition to imprisonment, the offender is also liable to fine.
First Proviso to Section 70(1) — Purpose of Fine
Bare Act
“Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim”
This proviso places a specific requirement concerning the fine.
The fine imposed by the court must be just and reasonable and should take into account the medical expenses and rehabilitation of the victim.
Therefore, the fine is not merely an additional financial punishment. The provision specifically connects it with the victim’s medical treatment and rehabilitation.
For example, where a victim requires substantial medical treatment and rehabilitation following the offence, the court is required to consider these needs while determining the fine.
Second Proviso to Section 70(1) — Fine to Be Paid to the Victim
Bare Act
“Provided further that any fine imposed under this sub-section shall be paid to the victim.”
This proviso specifies what happens to the fine imposed under Section 70(1).
The fine imposed under this subsection must be paid to the victim.
Thus, Section 70(1) combines punishment of the offender with a financial component directed towards the victim.
Section 70(2) — Gang Rape of a Woman Under Eighteen Years
Section 70(2) creates a separate and more severe rule where the victim is under eighteen years of age.
Bare Act
“Where a woman under eighteen years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention…”
The provision applies when the woman is below eighteen years of age and the rape is committed by one or more persons constituting a group or acting in furtherance of a common intention.
The same collective liability principle applies here as under Section 70(1).
Deemed Liability Under Section 70(2)
Bare Act
“each of those persons shall be deemed to have committed the offence of rape”
Just as under Section 70(1), each person falling within the group or common-intention requirement is deemed to have committed the offence of rape.
The special feature of Section 70(2) is therefore not a different rule of collective liability, but the fact that the victim is under eighteen years of age, resulting in a substantially more severe punishment.
Punishment Under Section 70(2)
Bare Act
“shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine, or with death”
The punishment under Section 70(2) is more severe than under Section 70(1).
The court may impose life imprisonment, with the statute specifically defining it as imprisonment for the remainder of the offender’s natural life, along with fine.
Alternatively, the provision permits death penalty.
Thus, where the victim is under eighteen years of age, Section 70(2) provides the possibility of the maximum criminal punishment prescribed by law.
First Proviso to Section 70(2) — Fine for Medical Expenses and Rehabilitation
Bare Act
“Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim”
The same principle regarding the purpose of the fine applies here.
The fine must be just and reasonable, taking into consideration the victim’s medical expenses and rehabilitation.
This recognises that the consequences of gang rape may require substantial medical care and rehabilitation.
Second Proviso to Section 70(2) — Fine Paid to the Victim
Bare Act
“Provided further that any fine imposed under this sub-section shall be paid to the victim.”
The fine imposed under Section 70(2) must also be paid to the victim.
Therefore, both subsections contain the same victim-oriented provisions regarding the fine: the amount should be just and reasonable for medical expenses and rehabilitation, and the fine imposed must be paid to the victim.
Difference Between Section 70(1) and Section 70(2)
| Basis | Section 70(1) | Section 70(2) |
|---|---|---|
| Victim’s age | General provision | Woman under 18 years |
| Gang rape | Applies | Applies |
| Collective liability | Each qualifying participant is deemed to have committed rape | Same |
| Minimum punishment | 20 years rigorous imprisonment | Life imprisonment |
| Life imprisonment | May extend to life imprisonment for the remainder of natural life | Life imprisonment means remainder of natural life |
| Death penalty | Not provided | May be imposed |
| Fine | Yes | Yes |
| Purpose of fine | Medical expenses and rehabilitation | Medical expenses and rehabilitation |
| Payment of fine | Paid to the victim | Paid to the victim |
Woman Cannot Be Held Guilty of Gang Rape — Priya Patel v. State of Madhya Pradesh , AIR 2006 SC 2639
The Supreme Court considered whether a woman who was part of a group and facilitated the commission of rape could herself be convicted for gang rape.
The Court held that a woman cannot be convicted of the offence of gang rape merely because she was a member of the group or assisted in the commission of the rape, because the offence of rape, as legally defined at that time, could be committed only by a man.
The Court further explained that the expression “in furtherance of their common intention” in the gang-rape provision refers to a common intention to commit rape. Since a woman could not herself commit the offence of rape under the statutory definition applicable in that case, she could not be treated as having the required common intention to commit rape for the purpose of the gang-rape provision.
Therefore, the judgment established that mere participation or facilitation by a woman was not sufficient to make her guilty of gang rape under the law considered by the Court.
Note: Priya Patel was decided under the IPC framework. For BNS notes, it should be used carefully because the statutory wording and structure of the BNS are different.
Requirement of More Than One Male — Punnu v. State (NCT of Delhi) , 2018 (1) JCC 657
The Court considered the requirement of participation in an offence of gang rape. It held that the offence requires more than one male offender to share the intention to commit rape against the victim.
The Court observed that a woman cannot be regarded as sharing a common intention to commit rape upon another woman, because under the statutory definition applicable at that time, rape could be committed only by a male. Consequently, a woman could not be convicted for rape or gang rape merely on the allegation that she participated in or facilitated the offence.
The decision therefore emphasised that the common intention in gang rape must relate to the commission of rape itself, and a woman could not be treated as having such an intention under the IPC provision considered in that case.
Note: This judgment was decided under the IPC, and the statutory position should be examined separately when applying the principle to Section 70 BNS.
Section 71 BNS — Punishment for Repeat Offenders
Section 71 of the Bharatiya Nyaya Sanhita, 2023 provides a very severe punishment for a person who, after being previously convicted of certain serious sexual offences, is again convicted of another offence falling within the same specified group.
The purpose of the provision is to impose enhanced punishment on repeat offenders who commit serious sexual offences despite having already been convicted for such an offence.
Bare Act
“Whoever has been previously convicted of an offence punishable under section 64 or section 65 or section 66 or section 70 and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death.”
The provision operates in two stages. First, the person must have been previously convicted of an offence punishable under Section 64, 65, 66 or 70. Secondly, after that previous conviction, the person must be subsequently convicted of an offence punishable under any of those same sections.
Thus, a mere previous allegation or FIR is not sufficient. The section specifically uses the expression “previously convicted.” There must therefore be a qualifying previous conviction.
Previous Conviction Under the Specified Sections
The first requirement is:
“has been previously convicted of an offence punishable under section 64 or section 65 or section 66 or section 70”
These provisions cover serious forms of sexual offences and aggravated circumstances, including rape, rape of women below specified ages, rape resulting in death or persistent vegetative state, and gang rape.
For example, suppose A is convicted of an offence punishable under Section 64. If A later commits another offence punishable under one of the sections mentioned in Section 71 and is subsequently convicted, the repeat-offender provision can become applicable.
Subsequent Conviction
The second requirement is:
“and is subsequently convicted of an offence punishable under any of the said sections”
This means that after the earlier conviction, the person must again be convicted of an offence punishable under Section 64, 65, 66 or 70.
The important word is “subsequently.” The second qualifying conviction must follow the earlier conviction contemplated by the provision.
For example, if a person has already been convicted under Section 64 and is later convicted under Section 70 for gang rape, Section 71 may apply because both offences fall within the sections specified in Section 71.
Punishment — Life Imprisonment
The Bare Act provides:
“shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life”
The punishment is extremely severe. The court may impose life imprisonment, and Section 71 expressly clarifies that, for this provision, life imprisonment means imprisonment for the remainder of the offender’s natural life.
Therefore, the provision does not contemplate ordinary life imprisonment with the possibility of release after a particular period merely by virtue of the expression “life imprisonment”; the statutory language specifically defines it as imprisonment for the remainder of natural life.
Alternative Punishment — Death
The provision further states:
“or with death.”
Thus, Section 71 provides two alternative punishments: imprisonment for life for the remainder of the offender’s natural life, or death.
The provision therefore represents one of the most stringent punishment provisions relating to repeat sexual offenders under the BNS.
Simple Example
Suppose A is previously convicted of rape punishable under Section 64. After that conviction, A again commits an offence punishable under Section 70 and is subsequently convicted.
Since A has a previous qualifying conviction and has subsequently been convicted of another offence falling within the sections specified in Section 71, the enhanced punishment under Section 71 may apply.
Conviction on the Sole Testimony of the Prosecutrix — Rajesh Patel v. State of Jharkhand , AIR 2013 SC 1497
The Supreme Court reaffirmed that a conviction for rape can be based solely on the testimony of the prosecutrix when her evidence is found to be natural, credible and reliable.
The Court recognised that the testimony of the prosecutrix does not necessarily require independent corroboration in every case. If, after careful examination, her evidence inspires confidence and appears trustworthy, the court may rely upon it by itself for recording a conviction.
Thus, the absence of supporting evidence from another witness does not automatically prevent a conviction. The decisive consideration is whether the testimony of the prosecutrix is reliable and worthy of acceptance.
BNS Sections 63–71 — Quick Revision Table
| Section | Offence / Subject | Key Point | Punishment |
|---|---|---|---|
| 63 | Rape — Definition | Defines rape and specifies the sexual acts and circumstances in which they constitute rape. | No punishment — punishment is prescribed under Sections 64–66 depending on the circumstances. |
| 64(1) | Punishment for Rape | Ordinary rape not falling under the aggravated cases in Section 64(2). | Rigorous imprisonment: minimum 10 years, may extend to life imprisonment + fine. |
| 64(2) | Aggravated Rape | Covers rape by police officers, public servants, armed forces personnel, custodial staff, persons in authority, during communal/sectarian violence, against pregnant women, women incapable of consent, women with disabilities, etc. | Rigorous imprisonment: minimum 10 years, may extend to life imprisonment for remainder of natural life + fine. |
| 65(1) | Rape of Woman Under 16 Years | Applies where the victim is below 16 years. | Rigorous imprisonment: minimum 20 years, may extend to life imprisonment for remainder of natural life + fine. Fine should meet medical expenses and rehabilitation and is paid to victim. |
| 65(2) | Rape of Woman Under 12 Years | Applies where the victim is below 12 years. | Life imprisonment for remainder of natural life + fine OR death. Fine should meet medical expenses and rehabilitation and is paid to victim. |
| 66 | Rape Resulting in Death or Persistent Vegetative State | During rape punishable under Section 64(1) or 64(2), the offender causes an injury resulting in the woman’s death or persistent vegetative state. | Rigorous imprisonment: minimum 20 years, may extend to life imprisonment for remainder of natural life OR death. |
| 67 | Sexual Intercourse by Husband During Separation | Husband has sexual intercourse with his wife while she is living separately, without her consent, whether separation is by decree or otherwise. | Imprisonment: minimum 2 years, may extend to 7 years + fine. |
| 68 | Sexual Intercourse by Person in Authority | Person in authority, public servant, custodial/hospital staff etc. abuses position to induce or seduce a woman to have sexual intercourse, where it does not amount to rape. | Rigorous imprisonment: minimum 5 years, may extend to 10 years + fine. |
| 69 | Sexual Intercourse by Deceitful Means, etc. | Sexual intercourse through deceitful means or a promise to marry made without intention of fulfilling it, where it does not amount to rape. | Imprisonment up to 10 years + fine. |
| 70(1) | Gang Rape | Woman is raped by persons constituting a group or acting in furtherance of common intention. Each qualifying person is deemed to have committed rape. | Rigorous imprisonment: minimum 20 years, may extend to life imprisonment for remainder of natural life + fine. Fine for medical expenses/rehabilitation and paid to victim. |
| 70(2) | Gang Rape of Woman Under 18 | Gang rape where the woman is below 18 years. | Life imprisonment for remainder of natural life + fine OR death. Fine for medical expenses/rehabilitation and paid to victim. |
| 71 | Repeat Offenders | Previous conviction under 64, 65, 66 or 70, followed by subsequent conviction under any of these sections. | Life imprisonment for remainder of natural life OR death. |
Important FAQs — BNS Sections
1. What is the main subject of Section 63 of the BNS?
Answer: Section 63 defines the offence of rape. It specifies the sexual acts that may constitute rape and the circumstances in which those acts amount to rape, including absence of consent, consent obtained through specified fear or misconception, incapacity to understand the nature and consequences of the act, the victim being below eighteen years, and inability to communicate consent.
2. What is the punishment for rape under Section 64(1) BNS?
Answer: Ordinary rape under Section 64(1) is punishable with rigorous imprisonment of at least 10 years, which may extend to imprisonment for life, along with fine.
3. What is the punishment for rape of a woman below 16 years under Section 65(1)?
Answer: Section 65(1) provides rigorous imprisonment of not less than 20 years, which may extend to life imprisonment for the remainder of the offender’s natural life, along with fine. The fine is intended to meet the medical expenses and rehabilitation of the victim and is to be paid to the victim.
4. What is the punishment for rape of a woman below 12 years under Section 65(2)?
Answer: Section 65(2) provides life imprisonment for the remainder of the offender’s natural life and fine, or death. The fine is required to be just and reasonable for the medical expenses and rehabilitation of the victim and is paid to the victim.
5. When does Section 66 BNS apply?
Answer: Section 66 applies when, during the commission of rape punishable under Section 64(1) or 64(2), the offender causes an injury resulting in the death of the woman or a persistent vegetative state. The punishment is minimum 20 years’ rigorous imprisonment, which may extend to life imprisonment for the remainder of natural life, or death.
6. What offence is covered by Section 67 BNS?
Answer: Section 67 deals with sexual intercourse by a husband with his wife during separation without her consent. It applies whether the separation is pursuant to a decree of separation or otherwise. The punishment is 2 to 7 years’ imprisonment and fine.
7. What is the punishment under Section 68 BNS?
Answer: Section 68 deals with sexual intercourse by a person in authority, including specified public servants, custodial personnel and hospital personnel, where the person abuses the relevant position to induce or seduce a woman to have sexual intercourse and the act does not amount to rape. The punishment is rigorous imprisonment from 5 to 10 years and fine.
8. What does Section 69 BNS criminalise?
Answer: Section 69 criminalises sexual intercourse obtained through deceitful means or through a promise to marry made without intention of fulfilling it, where the sexual intercourse does not amount to rape. The punishment may extend to 10 years’ imprisonment and fine.
9. What is the difference between Section 70(1) and Section 70(2)?
Answer: Section 70(1) deals with gang rape generally and provides a minimum punishment of 20 years’ rigorous imprisonment, extendable to life imprisonment for the remainder of natural life, along with fine. Section 70(2) applies when the woman is under 18 years of age and provides life imprisonment for the remainder of natural life and fine, or death.
10. When does Section 71 BNS apply?
Answer: Section 71 applies to a repeat offender who has previously been convicted of an offence punishable under Sections 64, 65, 66 or 70 and is subsequently convicted of another offence punishable under any of those sections. The punishment is life imprisonment for the remainder of natural life or death.
