What are the Essentials for proving Guilt in Rape cases in India?

By Samriddhi Thakar


The entire nation was shocked once again when a 19-year-old girl from Hathras was gang raped and brutally assaulted by four men of upper caste. Further, on her death she was cremated forcefully by the police without the consent of her parents. Rape is one of the most heinous crimes in society. Every sixteen minutes, a woman is raped somewhere in India.

Rape and sexual assault against women have got wide-spread attention due to the murder and gang rape which took place in Delhi, in 2012, also known as Nirbhaya Gangrape Case.

The number of cases since then has been increasing. The situation in India is alarming. For the same reason India is called as “most dangerous country for women.”

Rape is unlawful sexual activity without the consent of the other person. The after-effects of such an offense are traumatizing and very difficult to overcome. However, the Nirbhaya Case widened the definition of rape by adding penetration in any women’s body part. Further, included death sentence in extreme cases.

Thus, this article deals with rape and what are the essentials of proving guilt in rape cases in India.

What is rape?

The word rape has been derived from the Latin term ‘rapio’ which means forcible seizure. Rape is basically a form of sexual assault involving sexual intercourse with the other person without his/her consent.

It is one of the heinous crimes committed against an individual affecting the whole society. It is a crime that brings disgrace to the whole of mankind.

The term rape has been defined in Section 375 of the Indian Penal Code (hereinafter as the IPC). Recently, The Criminal Law (Amendment) Act, 2013, which is also known as Nirbhaya Act was passed to amend Section 375 of the Indian Penal Code.

The amendment was made to give strict punishment for sexual offenses and to define sexual assault. Thus, according to this section a man is said to commit 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; or
  • 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; or
  • Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her to do so with him or any other person; or
  • Applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person,”

It is a rape if it falls under any of the seven descriptions as stated in Section 375 of IPC:

“Firstly- Against her will.

Secondly- Without her consent.

Thirdly- 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.

Fourthly- 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.

Fifthly- 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.

Sixthly- With or without her consent, when she is under eighteen years of age.

Seventhly- When she is unable to communicate consent.”

Punishment for rape is given under Section 376 of the Indian Penal Code. Rape is a serious crime punishable with rigorous imprisonment of ten years which may extend to imprisonment for life, and also liable to pay fine. It is a cognizable, non-bailable, non-compoundable offense and triable by Sessions Court.

Exceptions to Section 375

  • If a woman does not physically resist to the act of penetration, then it will be regarded as consenting sexual activity.
  • A medical procedure or intervention shall not constitute rape.
  • Sexual intercourse by a man with his own wife who is not below age of fifteen shall not constitute to rape. In the case of Bishudayal Vs State of Bihar,[1] a girl of 13 or 14 years of age was sent by her father to accompany the relatives of his elder daughter’s husband to look after her elder sister for some time as she was suffering from mental ailment.

Later on, it was found that the girl did not return as she was married to the appellant and he had sexual intercourse with her. Hence, the accused was convicted for rape under Section 375 of the Indian Penal Code for having sexual intercourse with a girl below fifteen years of age.

What are the essentials to prove guilt in rape cases?

To prove a person guilty of rape, the victim has to undergo a lengthy investigation process, to performing various tests. The process is complex and painful.

However, it is very essential to prove the rapist guilty. Following are some of the ways in which evidence is collected and assessed and used for proving rapists guilty.

Investigation and examination of assaulter

According to Section 228A of the Indian Penal Code, no person should disclose the name or any matter which may make known the identity of any person against whom an offense of rape has been committed. If anyone discloses the identity, then he/she shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to a fine.[2]

Section 114A of the Indian Evidence Act says that, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.[3]

Further, Section 53 of the Criminal Procedure Code lays down that whenever the female is to be examined, it should be done by or under the supervision of a registered female medical practitioner only.[4]

Thus, these points are to be kept in mind while investigating any case.

Tests for proving guilt in rape cases

In order to prove guilt in rape cases, a thorough investigation of the collection of evidence from the spot where the incident took place along with medical tests are to be performed for the conviction of the rapist. Following are the ways:

  • Filing of an FIR

It is one of the most important steps in proving the guilt. An FIR is to be filed in the nearest police station to set the criminal justice machinery in motion.

  • Place, date, time of the crime

The victim has to disclose the whole information regarding the place, date, time when the crime took place to the female officer.

  • Mental state of the victim

Before recording the statement the female medical practitioner should check the mental state of the victim, whether she is in a fit state of mind to disclose the information, and is she suffering from any physical bodily injury, etc.

  • Statement of the victim

The victim has to disclose all the facts as to how the rape took place, was there any connection of the victim with the rapist, and all such information which is relevant and important to convict the rapist.

  • Consent of the victim

This is one of the most important and crucial aspects of any rape case as the whole case revolves around the consent of a woman. The woman has to disclose if she had given consent or whether it was under force or compulsion or death threat etc.

In the case of State of Maharashtra Vs Prakash,[5] it was a case where a police constable and businessman had sexual intercourse with a woman by beating her husband and threatening to put him in police remand. Hence, the Apex Court held that the act falls under section 375(3) Indian Penal Code.

Further, the Court also held that the suggestion that the victim has consented to the sexual intercourse is also ruled out. The Court held that actual use of force is not necessary, threat to use of force is also sufficient.

Also, in the case of Tulsidas Kanolkar Vs State of Goa[6], the victim was mentally ill and the accused committed rape on her. Hence, the Court held that the accused took advantage of her mental condition. It is specifically mentioned in Section 375 of the Indian Penal Code that consent obtained due to mental illness/ unsoundness of mind is no consent. It amounts to rape.

  • Age of the victim

It is very important to ascertain the age of the victim as rape by the husband with his wife below the age of 15 years amounts to rape. The husband is not allowed to have sexual intercourse with his wife who is below fifteen years of age. Also, it is a rape with or without consent if the woman is below 18 years of age.

In Kathua Rape Case[7], a small girl of 8 years old named Asifa Bano from Kathua was gang raped by some of the men. The Court in this case held that it was clear case of rape as it is immaterial if the consent was given by the girl or not as sexual intercourse with a woman below 18 years of age is rape.

  • Testimony of an eyewitness

Another vital aspect of the investigation is testimony of the eyewitness if any. As the testimony helps in supporting the statements made by the victim and becomes easy to ascertain if rape has taken place.

Medical Examination

After filing an FIR, a medical examination of witnesses is conducted for evidentiary purposes. This examination helps in understanding whether the alleged accused has committed the rape or not/ he is guilty of rape or not.

  • Clothes for examination

The clothes of the victim are generally taken and sent for forensic analysis to ascertain traces of DNA and to identify the accused. The marks of semen present on the clothes acts as an important aspect in deciding the guilt of the rapist. Furthermore, the clothes are also taken to examine if there are any blood or saliva marks on the clothes.

  • Fingernail scraping

The fingernail scraping collection is another important aspect in deciding the guilt of the rapist as it may leave behind foreign DNA or fibres under the patient’s fingernails.

  • Injuries on the body

The injuries on the body helps to understand the severity of the violence committed, the force used on the victim, etc. In the case of Mukesh & Anr Vs State for NCT of Delhi & Ors,[8] the victim was severely injured. Rod was inserted in her private parts and on examination by the doctor it was found that only 5% intestines were left in her body. Thus, from the injuries it was evident that rape was committed on her.

  • Examination of objects

It is very necessary to send the following objects such as clothes, shoes, footwear, carpet, pillow, fingerprints, footprints, hair, saliva, semen stains, etc to the laboratory to examine and for DNA testing, etc.

  • Two finger test

It is a test to figure out the laxity of vaginal muscles and whether the hymen is stretchable for not. It is a test where the doctor puts two fingers in the vagina of the victim to find out if sex has taken place and if she is sexually active or not.

However, this test was declared unconstitutional and violative of her privacy, physical and mental integrity and dignity in the case of Lillu Vs State of Haryana.[9] Hence, not practiced in India.

Therefore, these are some of the essentials for proving the guilt in rape cases in India.

Why so many Rape cases are committed in India?

According to the National Crimes Record Bureau (NCRB), 87 rape cases are recorded every single day in India, in 2019. The rate of crime has also increased sharply by 7.3% in 2019.[10] However, low cases were recorded in 2020 due to the Covid-19 pandemic.

Looking at the figures it is not wrong to say that the crime rate in India is alarming. So, one may feel Why are so many rape cases being committed in India? The answer to this question is when we take a closer look at all the cases, they are generally committed by people of more or less similar backgrounds.

They all are migrant workers who are semi-skilled looking for petty jobs in urban areas. The jobs are such which helps them to get basic food items and daily necessities. These are the people who are away from the family and are generally sex-starved. This to some extent forces a person to commit a crime.

Life in the city is very glamorous than it is in their villages. Due to westernization women often tend to wear short clothes or even revealing clothes to which these people are not acquainted and they believe western clothes are immoral and therefore commit rape. This is also another reason due to which there is a sharp rise in the number of rape cases.

India being a patriarchal society, women are viewed as secondary and not given much power and importance, they are also subjected to sexism and domestic violence. Due to this never-ending discrimination in society, rape cases are increasing.

The time has come to increase the number of female officers and to change the mentality of society.


India generally believes in the concept of worshipping women or mothers. But nowadays we can see that concept getting disappeared. Now women are seen as a sex objects and raped by men for their satisfaction or pleasure.

The situation in India is worst. A girl doesn’t feel safe to travel alone at night, wear short clothes, go clubbing at night only because of some men.

Women are questioned for wearing short clothes and often called out in a bad way. The time has come to change the mentality of the people, raise the boys since birth in such a way that they do not commit rape on women.

To make our country so safe that no women would ever feel unsafe at night alone, wearing short clothes, etc. Time has come to make India more of a safe country rather than a dangerous country.


  1. Bishudayal Vs State of Bihar, AIR 1981 SC 39,
  2. Indian Penal Code, Section 228A
  3. Indian Evidence Act, Section 114A
  4. Criminal Procedure Code, Section 53
  5. State of Maharashtra Vs Prakash, AIR 1992 SC 1275,
  6. Tulsidas Kanolkar Vs State of Goa, (2003) 8 SCC 590 
  7. Vishal Jangotra @ Shamma & Anr vs Union of India & Others, CWP No. 19904 of 2018
  8. Mukesh & Anr Vs State for NCT of Delhi & Ors, CRIMINAL APPEAL NOS. 607-608 OF 2017
  9. Lillu Vs State of Haryana, CRIMINAL APPEAL NO. 1226 OF 2011
  10. Mythreyee Ramesh, India reports 87 rapes per day: NCRB data amid Hathras outrage, The Quint, available at: thequint.com (last visited on 21 July 2021)

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