ANNEXURE-3

Recommendations of the 172nd Law Commission Report

Proposed Amendments to the Indian Penal Code 1860 (IPC)

• Substitution of the existing Section 375 of the IPC recommended: The

existing Section 375 defining rape be substituted by the definition of

sexual assault.*1 It has been attempted to include the common forms of

child sexual abuse in this definition. The exception regarding marital

rape has been retained.

Sexual Assault: Sexual assault means -

(a) Penetrating the vagina (which term shall include the labia majora), the anus, or unethra of
any person with:
(i) any part of the body of another person or
(ii) an object manipulated by another person
(b) Manipulating any part of the body of another person so as to cause penetration of the
vagina (which term shall include the labia majora), the anus, or the urethra of the
offender by any part of the other person’s body;
(c) Introducing any part of the penis of a person into the mouth of another person;
(d) engaging in cunnilingus or fellatio; or
(e) continuing sexual assault as defined in clauses
(a) to (d) above
in circumstances falling under any of the six following descriptions:
First - Against the other person’s will;
Secondly - Without the other person’s consent;
Thirdly - With the other person’s consent when such consent has been obtained by putting such
other person or any person in whom such other person is interested, in fear of death or hurt;
Fourthly- Where the other person is a female, with her consent, when the man knows that he is
not the husband of such other person and that her consent is given because she believes that the
offender is another man to whom she is or believes herself to be lawfully married;
Fifthly- With the consent of the other person, when, at the time of giving such consent, by reason
of unsoundness of mind or intoxication or the administration by the offender personally or through
another of any stupefying or unwholesome substance, the other person is unable to understand the
nature and consequences of that to which such other person gives consent; and
Sixthly- With or without the other person’s consent, when such other person is under sixteen
years of age.
Explanation: Penetration to any extent is penetration for the purposes of this section.
Exception : Sexual intercourse by a man with his own wife, the wife not being under sixteen years
of age, is not sexual assault.
 • Section 376 has been redefined to provide for punishment for sexual
assault.2

2 Section 376. Punishment for sexual assault - (1) Whoever, except in the cases provided
for by subsection
(2) commits sexual assault shall be punished with imprisonment of either description fpr a term
which shall not be less than seven years but which may be for life or for a term which may extend
to ten years and shall also be liable to fine unless the person subjected to sexual assault is his own
wife and is not under sixteen years of age, in which case, he shall be punished with imprisonment
of either description for a term which may extend to three years and shall also be liable to fine.
If the sexual assault is committed by a person in a position of trust or authority towards
the person assaulted or by a near relative of the person assaulted, he/she shall be punished with
rigorous imprisonment for a term which shall not be. less than ten years but which may extend to
life imprisonment and shall also be liable to fine.
Provided that the court may, for adequate and special reasons to be mentioned in the
judgment, impose a sentence of imprisonment for a term of les than minimum punishment
prescribed in this subsection.
(2) Whoever:
(a) being a police officer commits sexual assault:
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is
appointed; or
(iii) on a person in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits sexual assault on a
person in his custody as such public servant or in the custody of a public servant subordinate to
him; or
(c) 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 takes advantage of his official position and commits sexual assault on any inmate of
such jail, remand home, place, or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position
and commits sexual assault on a person in that hospital; or
(e) commits sexual assault on a woman knowing her to be pregnant; or
(f) commits sexual assault on a person when such person is under sixteen years of age; or
(g) commits gang sexual assault;
shall be punished with rigorous imprisonment for a term which shall not be less than ten years but
which may be for life and shall also be liable to fine;
Provided that the court may, for adequate and special reasons to be mentioned in. the judgement,
impose a sentence of imprisonment of either description for a term of less than ten years.
Explanation 1-Where a person is subjected to sexual assault by one or more in a group of persons
acting in furtherance of their common intention, each of the persons shall be deemed to have
committed gang sexual assault within the meaning of this subsection.
Explanation 2 - ‘Women’s or children’s institution’ means an institution, whether called an
orphanage or a home for neglected omen or children or a widows’ home or an institution called by
any other name, which is established and maintained for the reception and care of women or
children.
Explanation 3- ‘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.
 • Punishment for sexual assault has been enhanced : The minimum
punishment has been recommended as five years by amending Sections
376B, 376C, and 376D.*3 2
• Insertion of a new section dealing with unlawful sexual contact: A new
Section 376E has been recommended to be added to the IPC, which
deals with unlawful sexual contact. This section is intended to cover
those forms of child sexual abuse wherein the abuser touches the victim
with sexual intent either directly or indirectly with any part of the body
or with an object. It also includes inciting or inviting or counseling and
using undue influence with sexual intent to touch directly or indirectly
with the part of the body or object.4 Many common forms of sexual
abuse occur in this manner. Complaints under this proposed offence
have to be instituted by the aggrieved person or by his/her father,

The modified Sections 376A, 376B, and 376D of the IPC shall read as follows: ‘376B.
Sexual intercourse by public servant with person in his custody- Whoever, being a public
servant, takes advantage of his/her official position and induces or seduces any person,
who is in his custody as such public servant or in the custody of a public servant
subordinate to him, to have sexual intercourse with him/her, such sexual intercourse not
amounting to the offence of sexual assault, shall be punished with imprisonment of either
description for a term which shall not be less than five years and which may extend to ten
years and shall also be liable to fine.
Provided that the court may, for adequate and special reasons to be mentioned in the judgement,
impose a sentence of imprisonment for a term of less than five years.
4 376E, IPC : Unlawful sexual contact; (1) Whoever, with sexual intent, touches, directly
or indirectly, with a part of the body or with an object, any part of the body of another
person, not being the spouse of such person, without the consent of such other person,
shall be punished with simple imprisonment for a term which may extend to two years or
with fine or with both.
(2) Whoever, with sexual intent, invites, counsels, or incites a young person to touch, directly or
indirectly, with a part of the body or with an object, the body of any person, including the body of
the person who so invites, counsels, or incites, or touches, with sexual intent, directly or indirectly,
with a part of the body or with an object any part of the body of a young person, shall be punished
with imprisonment of either description which may extend to three years and shall also be liable to
fine.
(3) Whoever, being in a position of trust or authority towards a young person, or is a person with
whom the young person is in a relationship of dependency, touches, directly or indirectly, with
sexual intent, with a part of the body or with an object, any part of the body of such young person,
shall bd\punished with imprisonment of either description which may extend to seven years and
shall also be liable to fine.
Explanation: ‘Young person’ in this subsection and Subsection (2) means a person below the age
of sixteen years.’
 mother, and brother or by his/her father’s or mother’s brother or sister
or by any other person related to him/her by blood or adoption.5
• Deletion of Section 377 of the IPC : The controversial Section 377IPC
relating to unnatural offences, which was generally used in cases of boy
child sexual abuse cases as there was no other adequate provision, to be
deleted.6
. • Section 509 of the IPC to be amended: The punishment for insulting
the modesty of any woman by word, gesture, or act is to be enhanced
from one year to three years.7
• Insertion of new Section 166A IPC : If any public servant knowingly
disobeys any direction of the law requiring his attendance at any place
or regarding the conduct of any investigation will be punished.8
Proposed Amendments to the Criminal Procedure Code 1973 (Cr PC)
• Sections 160(3) and 164(4) and proviso of Section 160(1) to be

amended: In cases of sexual assault and unlawful sexual contact, the

statement of the victim is to be recorded by a female police officer and

Insertion of Section 198B to the CrPC: No court shall take cognizance of an offence
punishable under Subsections (2) and (3) of Section 376E of the Indian Penal Code (45 of
1860) except upon a police report of facts which constitute such offence or upon a
complaint made by the person aggrieved by the offence or by his/her father, mother,
brother, sister, or by his/her father’s or mother’s brother or sister or, by any other person
related to him/her by blood or adoption, if so permitted by the court.
Section 377, IPC deserves to be deleted in the light of the changes effected by us in
Sections 375 to 376E. We leave persons having carnal intercourse with any animal to
their just deserts.
Section 509, IPC - ‘Word, gesture, or act intended to insult the modesty of a woman:
Whoever, intending to insult the modesty of any woman, utters any word, makes any
sound or gesture,, or exhibits any object intending that such word or sound shall be heard,
or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy
of such woman, shall be punished with simple imprisonment for a term which may
extend to three years and shall also be liable to fine.’
166A. Whoever, being a public servant:
(a) knowingly disobeys any direction of the law prohibiting him from requiring the
attendance at any place of any person for the purpose of investigation into an offence
or other matter, or
(b) knowingly disobeys any other direction of the law regulating the manner in v 'rich he
shall conduct such investigation, to the prejudice of any person, shall be punished
with imprisonment for a term which may extend to one year or with fine or with
both”.
 in case a female police officer is not available, by a female government

servant or in the alternative by a female authorized by an organization

interested in the welfare of women and children. If none of them are

available, the officer in charge of the police station will have to record

the statement after giving the reasons in writing.9 The recording of the

statement of any woman or a male less than sixteen years (instead of

fifteen years at present) has to be done at the place of residence in the

presence of a relative, friend, or a social worker.

• Insertion of Section 164A to the CrPC : The medical examination of

i

the victim of sexual assault should be by a registered medical

practitioner with the consent of the victim. If the victim is a female, the
medical examination has to be done by a female medical officer. The
proposed amendment gives a format of the medical examination report.

Section 160(3) Cr PC: Where the statement of a female is to be recorded either as first
information of an offence or in the course of an investigation into an offence and she is a
person against whom an offence under Sections 354, 375, 376, 376A, 376B, 376C, 376D,
376E, or 509 of the Indian Penal Code is alleged to have been committed or attempted,
the statement shall be recorded by a female police officer and in case a female police
officer is not available, by a female government servant available in the vicinity and in
case a female government servant is also not available, by a female authorized by an
organization interested in the welfare of women or children.
Subsection 160(4) : Where in any case none of the alternatives mentioned in Subsection
(3) can be followed for the reason that no female police officer or female government
servant or a female authorized by an organization interested in the welfare of women and
children is available, the officer in charge of the police station shall, after recording the
reasons in writing, proceed with the recording of the statement of such female victim in
the presence of a relative of the victim.
The proviso to Subsection (1) of Section 160 CrPC be substituted to read as follows:
‘Provided that no male person under the age of sixteen years or woman shall be required
to attend at any place other than the place in which such male person or woman resides.
While recording the statement, a relative or a friend or a social worker of the choice of
the person whose statement is being recorded shall be allowed to remain present. The
relative, friend, or social worker so allowed to be present shall not interfere with the
recording of statement in any manner whatsoever.’
 • The details to be provided include name, address, age, injury marks,
victim’s mental condition and a reasoned conclusion.*10 2 3 4 5 6 * * *
• Insertion of Section 53A in the Cr PC : This proposed amendment
relates to the medical examination of the accused of sexual assault by a
registered medical practitioner. The report should include the name,
address, age, marks of injury, who brought him, the duration of the
medical examination, and any other details and a reasoned
conclusion.11

Section 376-A, 376-B, 376-C, 376-E CrPC (1) Where, during the stage when any offence
under Section 376, Section 376A, Section 376B, Section 376C, Section 376D, or Section
376E is under investigation and it is proposed to get the victim examined by a medical expert,
such examination shall be conducted by a registered medical practitioner, with the consent of
the victim or of some person competent to give such consent on his/her behalf. In all cases,
the victim should be sent for such examination without any delay. Provided that if the victim
happens to be a female, the medical examination shall be conducted by a female medical
officer, as far as possible.
(2) The registered medical practitioner to whom the victim is forwarded shall without delay examine
the person and prepare a report specifically recording the result of his examination and giving the
following details:
(1) the name and address of the victim and the person by whom he/she was brought,
(ii) the age of the victim,
(iii) marks of injuries, if any, on the person of the victim,
(iv) general mental condition of the victim, and
(v) other material particulars, in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The report shall specifically record that the consent of the victim or of some person competent to
give such consent on his/her behalf to such examination had been obtained.
(5) The exact time of commencement and completion of the examination shall also be noted in the
report, and the registered medical practitioner shall, without delay, forward the report to the
investigating officer, who shall forward it to the magistrate referred to in Section 173 as part of the
documents referred to in Clause (a) of'Subsection (5) of that section.
(6) Nothing in this section shall be construed as rendering lawful any examination without the consent
of the victim or any person competent to give such consent on his/her behalf.
11 Section 53A Cr PC: (1) When a person accused of any of the offences under Sections 376,
376A, 376B, 376C, 376D, or 376E, or of an attempt to commit any of the said offences, is
arrested and an examination of his/her person is to be made under this section, he/she shall be
sent without delay to the registered medical practitioner by whom he/she is to be examined.
(2) The registered medical practitioner conducting such examination shall without delay examine
such person and prepare a report specifically recording the result of his examination and giving the
following particulars:
(i) the name and address of the accused and the person by whom he was brought, the duration of
the medical examination,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused, and
(iv) other material particulars, in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The exact time of commencement and completion of the examination shall also be noted in the
report, and the registered medical practitioner shall, without delay, forward the report to the
investigating officer, who shall forward it to the magistrate referred to in Section 173 as part of the
documents referred to in Clause magistrate referred to in Section 173 as part of the documents
referred to in Clause (a) of Subsection (5) of that section.
 • A proviso to be added to Section 273 Cr PC : While taking evidence of
a sexual assault victim who is below sixteen years of age, appropriate
measures have to be taken so as to avoid confrontation by the
accused.12
Proposed Amendments to the Indian Evidence Act 1872 (IEA)
Section 114A and 146 of the IEA to be amended: In a prosecution for
sexual assault and unlawful sexual contact or an attempt to commit such'
offences, if the victim states in her evidence that she did not consent, the court
shall so presume. This will be a rebuttable presumption of law.13 It has also
been proposed that in such cases, the evidence of the character or the past
sexual history of the victim will not be relevant.14
Recommendations not Accepted by the Law Commission
There are certain recommendations which were made in the petition by
Sakshi but were not accepted by the 172nd Law Commission Report and which

‘Provided that where the evidence of a person below sixteen years, who is alleged to have
been subjected to sexual assault or any other sexual offence, is to be recorded, the court
may take appropriate measures to ensure that such person is not confronted by the
accused while at the same time ensuring the right of cross-examination of the accused.’
Section 114A IEA : Presumption as to absence of consent in certain prosecutions for
sexual assault: In a prosecution for sexual assault under Clause (a) or Clause (b) or
Clause (c) or Clause (d) or. Clause (e) or Clause (g) of Subsection (2) of Section 376 of
the Indian Penal Code (45 of 1860) where sexual intercourse by the accused is proved
and the question is whether it was without the consent of the other person alleged to have
been sexually assaulted and such other person states in his/her evidence before the court
that he/she did not consent, the court shall presume that he/she did not consent.
Explanation: ‘Sexual intercourse’ in this section and Sections 376C and 376D shall mean
any of the acts mentioned in Clauses (a) to (e) of Section 375. Explanation to Section 375
shall also be applicable.
Section 53 A IEA 1973 : In a prosecution for an offence under Sections 376, 376A, 376B,
376C, 376D, or 376E, or for attempt to commit any such offence, where the question of
consent is in issue, evidence of the character of the victim or of his/her previous sexual
experience with any person shall not be relevant on the issue of such consent or the
quality of consent.
In Section 146 of the Indian Evidence Act, the following clause shall be added after
Clause (3):
‘(4) In a prosecution for an offence under Sections 376, 376A, 376B, 376C, 376D, or
376E, or for attempt to commit any such offence, where the question of consent is in
issue, it shall not be permissible to adduce evidence or to put questions in the cross-
examination of the victim as to his/her general immoral character, or as to his/her
previous sexual experience with any person for proving such consent or the quality of
consent’.
need to be incorporated in the laws relating to CSA to make the law more
effective and child friendly. They are as follows:
• Exception to Section 375 not deleted [sexual intercourse by a man with
his own wife (above sixteen years) is not sexual assault]. Marital rape
has still not been recognized in the Indian legal system.
• Second proviso to Section 376(1) and the proviso to Section 376(2)
(which confer a discretion upon the court to award a sentence lesser
than , the minimum punishment) are not deleted. The discretion still
remains.
• . Definition of ‘consent’ has not been considered. It is important to
define as to what consent is in rape cases. In Mathura’s case, the court
regarded absence of marks of injury as consent. Such interpretations
need to be prevented in future.
• No mandatory provision has been laid down for investigation of
offences of rape and other sexual offences by women police officers
only.
■ • While granting bail to a person accused of sexual assault, one of the
conditions which should be imposed by the court shall be that such
person shall not be in the proximity of the person. No provision has
been made relating to this aspect.
• No provisions have been made for non-inference with or disturbance
of the natural habitat of the person sexually assaulted by or through the
criminal justice process and for the investigation of trial of sexual
offences to be time bound and to be concluded within six months.
• The expression ‘social worker’ is not defined.
• There is no presumption in respect of the age of victim. The age of the
victim will have to be proved. As mentioned earlier, the age of proof is
a very cumbersome process, at present, as many children do not have
documentary evidence and the medical evidence has to be relied on.
There is no provision for safe environment in which the child can
recover. (Recording of evidence of minor by video tape/circuit
television or appropriate breaks not provided for).
There is no provision for trial by special courts (this suggestion was
considered impractical by the Law Commission).
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