Sexual Offences — Rape, Aggravated Rape (Section 375–376 IPC / Sections 63–73 BNS)

Sections 63 to 73 of the Bharatiya Nyaya Sanhita, 2023 (BNS) — re-enacting Sections 375 to 376E of the Indian Penal Code, 1860 (IPC) with structural rearrangement and one substantive change — codify the law of rape and the cluster of aggravated, custodial and gang forms that surround it. The defining provision is Section 63 BNS (previously Section 63 — read with Exception 2). Punishment lives in Section 64 BNS, with graver minimums for the categories listed in Section 64(2). Sections 65 to 70 BNS deal with rape on minor victims, death or persistent vegetative state of the survivor, separated spouses, persons in authority, the new deceitful-means offence, and gang rape. Sections 71 to 73 BNS address repeat offenders and the protection of victim identity. Together, this cluster is the most heavily litigated and most often amended set of provisions in the entire Indian Penal Code and BNS framework.

The architecture has not been redrawn. The Criminal Law (Amendment) Act, 2013 (the post-Nirbhaya overhaul) and the Criminal Law (Amendment) Act, 2018 (the post-Kathua overhaul) had already done the heavy lifting on the IPC side. The BNS retains the four-limb actus reus, the seven descriptions of vitiated consent, the affirmative-consent rule, and the punishment grid almost verbatim. The single substantive change of consequence is the marital-rape exception: Exception 2 to Section 63 BNS now reads with the wife's age set at eighteen, codifying the Supreme Court's reading-down in Independent Thought v. Union of India, AIR 2017 SC 4904.

Statutory anchor and scheme

Section 63 BNS (previously Section 375 IPC) opens with the words "A man is said to commit 'rape' if he —" and lists four limbs of the actus reus, each followed by the seven descriptions under which the act becomes criminal. The offence is not gender-neutral: only a man can be the perpetrator and only a woman can be the victim under this section. Sexual abuse of male and transgender victims continues to be governed by the law on unnatural offences read with the POCSO Act for minors.

Section 64 BNS prescribes the punishment — rigorous imprisonment of not less than ten years extendable to life and fine, with a graver scheme of fourteen aggravating clauses in sub-section (2) carrying life imprisonment for the remainder of the convict's natural life. Section 65 BNS sets even higher minimums for child victims (under 16 and under 12). Section 66 BNS deals with rape that causes the survivor's death or leaves her in a persistent vegetative state. Sections 67 and 68 BNS criminalise sexual intercourse by a separated husband and by a person in authority respectively. Section 69 BNS is the BNS's lone original creation in this cluster and is dealt with in a separate chapter. Section 70 BNS addresses gang rape; Section 71 BNS, repeat offenders; and Sections 72 and 73 BNS, the prohibition on disclosure of the victim's identity and on publication of court proceedings without permission.

The actus reus — four limbs of penetration

Section 63 BNS reproduces the post-2013 four-fold definition of the prohibited act. The first limb is penile penetration of the vagina, mouth, urethra or anus. The second is insertion of any object or any non-penile body part into the vagina, urethra or anus. The third is manipulation of any body part of the woman so as to cause such penetration. The fourth is the application of the man's mouth to the woman's vagina, anus or urethra. "Vagina" includes the labia majora by Explanation 1. The earlier prosecutrix-centred non-penile-penetration prayer in Sakshi v. Union of India, AIR 2004 SC 3566, was declined on the merits but became the textual blueprint for the 2013 expansion.

The act is established the moment any of the four limbs is committed under one of the seven descriptions. The slightest penetration is enough; depth is irrelevant; ejaculation is irrelevant. Medical corroboration is helpful but not essential. The complainant is not an accomplice; her testimony alone, if credible, is enough — a rule restated in dozens of decisions and now treated as settled.

The seven descriptions — when consent is absent

The descriptions are the heart of the offence. The first two are the headline grounds — against her will, and without her consent. The Supreme Court in State of U.P. v. Chhoteylal, AIR 2011 SC 697, treated "will" and "consent" as overlapping but conceptually distinct: the first is breached by force or resistance; the second is vitiated by anything that makes the agreement non-voluntary. The third description is consent obtained by putting the woman or any person she cares for in fear of death or hurt. The fourth is consent obtained by impersonation of the husband. The fifth is consent given by a woman incapable of understanding because of unsoundness of mind, intoxication or administered stupefiants. The sixth is the statutory threshold — consent of a woman under eighteen is no defence at all. The seventh is the rule for victims unable to communicate consent at the relevant time.

Each description is independent and self-sufficient. A prosecution succeeds the moment the prosecutrix's case falls within any one. The mens rea attaches to the description: the accused must know or have reason to believe the consent-vitiating fact, except for descriptions Sixthly and Seventhly, which are statutory bright lines.

Consent — the affirmative-act standard

Explanation 2 to Section 63 BNS imports the affirmative-consent rule that the 2013 amendment had introduced into the IPC. Consent is "an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act." The proviso adds that the absence of physical resistance is not consent. The Delhi High Court in Mahmood Farooqui v. State, 2018 Cr LJ 3457, read the rule as mandating an affirmative communication for each act, on each occasion, between the same persons. Past intimacy does not establish present consent.

Consent obtained on a false promise of marriage occupies a distinct doctrinal slot. The Supreme Court in Deepak Gulati v. State of Haryana, AIR 2013 SC 2071, and again in Dhruvaram Murlidhar Sonar v. State of Maharashtra, 2019 (1) Scale 64, drew the line: consent procured by a promise the man never intended to keep is consent obtained by misconception of fact and is therefore no consent under Section 28 BNS (previously Section 90 IPC). Consent procured on a promise the man intended to keep but could not is mere breach and not rape. The trial court's task is to determine, from contemporaneous conduct, whether the promise was a clandestine inducement or a sincere intention.

Submission of the body under fear or terror is not consent — State of H.P. v. Mange Ram, AIR 2000 SC 2798. The blind helpless girl, the woman in custody, the patient in the medical room, and the woman of "easy virtue" all stand on the same legal footing: the right to refuse is absolute, and previous sexual history is irrelevant by the operation of Section 53A of the Indian Evidence Act, 1872 (now Section 51 BSA).

Marital-rape exception — age raised to eighteen

Exception 2 to Section 63 BNS is the only substantive doctrinal change in the entire cluster. The IPC version, after the 1949 amendment, exempted intercourse by a man with his own wife if the wife was not under fifteen years of age. The Supreme Court in Independent Thought v. Union of India, AIR 2017 SC 4904, struck down the exception insofar as it applied to wives between fifteen and eighteen, holding that the artificial classification between married and unmarried girl-children violated Articles 14, 15 and 21 and was inconsistent with the POCSO Act. The BNS now codifies that reading: the wife's age is set at eighteen on the face of the statute. The larger marital-rape question — whether intercourse by a husband with an adult wife without her consent should attract Section 63 BNS at all — remains unresolved; it was argued before the Delhi High Court (split verdict in 2022) and is pending before the Supreme Court.

Punishment — Section 64(1) BNS basic offence

Section 64(1) BNS retains the post-2013 minimum: rigorous imprisonment of not less than ten years which may extend to imprisonment for life, and fine. The earlier judicial discretion to award less than the minimum for "adequate and special reasons" was deleted by the 2013 amendment and not restored by the BNS. Sentencing within the band turns on aggravating and mitigating factors gathered under Bachan Singh v. State of Punjab (1980) — degree of brutality, age of the survivor, vulnerability, custodial element, repeat conduct. Fine, by the 2018 amendment, must be adequate to meet the survivor's medical and rehabilitation expenses and is to be paid to her. The wider sentencing apparatus of Sections 4 to 13 BNS on punishments applies in the usual way.

Aggravated rape — Section 64(2) BNS

Section 64(2) BNS lists fourteen aggravating clauses (a) to (n) and prescribes a heightened minimum of ten years extendable to imprisonment for life — and "life" here means imprisonment for the remainder of the convict's natural life, not the ordinary fourteen-to-twenty-year tariff. The clauses include rape by a police officer in or in connection with the police station, rape by any public servant on a woman in his custody, rape by a member of the armed forces (the BNS substitutes "army" for the IPC's "military") in a deployment area, rape by jail staff, hospital staff, a relative or guardian or teacher or person in a position of trust, rape during communal or sectarian violence, rape on a pregnant woman with knowledge, rape on a woman incapable of giving consent, rape by a person in a position of control or dominance, rape on a woman with mental or physical disability, rape causing grievous bodily harm or maiming or disfigurement or endangering life, and rape committed repeatedly on the same woman. Section 114A of the Indian Evidence Act (now Section 120 BSA) raises a statutory presumption against the absence of consent in these custodial and aggravated scenarios — the burden of proving consent shifts to the accused.

The aggravating clauses must be charged distinctly. The Supreme Court has insisted that conviction under Section 64(2) BNS requires a separate finding on the qualifying clause, with reasons recorded. A trial court that convicts under Section 64(1) BNS when the prosecution case rested on a clause of sub-section (2) commits a charge-framing error that invites enhancement on appeal. The cognate doctrines on charge framing in Section 191 IPC and the related provisions on false evidence apply with equal rigour where the trial record is challenged.

Rape on minor victims — Section 65 BNS

Section 65 BNS draws two age-based bright lines. Sub-section (1) deals with rape on a woman under sixteen years of age: the minimum is twenty years extending to imprisonment for life (whole-life). Sub-section (2) deals with rape on a woman under twelve years: the minimum is twenty years extending to imprisonment for life or with death. The death penalty for rape on a child under twelve was introduced by the 2018 amendment after the Kathua and Unnao cases and the BNS retains it without alteration. The 2018 amendment also barred anticipatory bail in cases of rape of girls below sixteen and mandated completion of investigation in two months and disposal of any appeal in six months.

The rule in Bachan Singh on the rarest-of-rare cases applies even where the death penalty is statutorily available — the sentencing court must record specific reasons before choosing death over life. The Verma Committee had recommended against death for rape; Parliament, after Kathua, took a different view; both positions are part of the exam syllabus.

Section 66 BNS — death or persistent vegetative state

Section 66 BNS (previously Section 376A IPC) covers the case where the act of rape causes the survivor's death or leaves her in a persistent vegetative state. The minimum is twenty years extending to life (whole-life) or death. The provision is most often charged together with the homicide provisions of Sections 100 to 103 BNS on culpable homicide and murder; the difference is that Section 66 BNS does not require proof of independent intention to cause death — it is enough that the rape caused the consequence. The Nirbhaya conviction was anchored, on the rape side, in this provision read with Section 302 IPC for the homicide.

Sections 67 and 68 BNS — separated spouses and persons in authority

Section 67 BNS (previously Section 376B IPC) criminalises sexual intercourse by a husband with his wife who is living separately under a decree or otherwise, without her consent. Punishment is two to seven years and fine. The section closes a gap that the marital-rape exception would otherwise leave open after a separation. Section 68 BNS (previously Section 376C IPC) criminalises sexual intercourse — short of rape — induced by a person in authority (a public servant, jail superintendent, hospital management or staff) by misuse of the position, on a woman in his charge. Punishment is five to ten years and fine. The two sections fill the doctrinal space between consensual intercourse and rape proper, and were a Verma Committee recommendation worked into the 2013 amendment.

Gang rape — Section 70 BNS

Section 70 BNS (previously Section 376D IPC, with 376DB folded in) addresses the case where the woman is raped by one or more persons constituting a group or acting in furtherance of a common intention. Each person is deemed to have committed the offence of rape and is punished with rigorous imprisonment of not less than twenty years extending to imprisonment for life (whole-life) and fine adequate to meet the survivor's medical and rehabilitation expenses. The doctrine of common intention under Section 3(5) BNS is grafted on for the purpose: a person who did not himself commit penetrative rape but was acting in concert is liable as a principal. Sub-section (2), corresponding to the IPC's Section 376DB, deals with gang rape on a woman under eighteen — the BNS raises the cut-off (the IPC threshold was twelve) and retains the death penalty.

Repeat offenders — Section 71 BNS

Section 71 BNS (previously Section 376E IPC) is the recidivist provision. A person previously convicted of an offence under Section 64, 65, 66 or 70 BNS who is convicted again of any of those offences is punished with imprisonment for life (whole-life) or with death. The provision was upheld against constitutional challenge in Vijay Jadhav v. State of Maharashtra (the Shakti Mills case appeals), where the Bombay High Court read it in light of the rarest-of-rare framework before confirming death.

Identity protection — Sections 72 and 73 BNS

Section 72 BNS (previously Section 228A(1) and (2) IPC) prohibits the printing or publication of the name or any matter that may make known the identity of any person against whom an offence under Sections 64, 65, 66, 67, 68, 70 or 71 BNS is alleged or found to have been committed. The BNS replaces "minor" with "child" — a small textual change that broadens the scope to any person below eighteen. Section 73 BNS (previously Section 228A(3) IPC) prohibits the printing or publication of any matter relating to court proceedings under those sections without the previous permission of the court. The two provisions together implement the identity-protection regime that State of Karnataka v. Puttaraja, (2004) 1 SCC 475, had insisted on — and that the trial-in-camera rule under Section 327(2) of the predecessor Code (now Section 366 BNSS) backs up procedurally.

Procedure and evidentiary safeguards

The substantive law is buttressed by a tightly woven procedural and evidentiary regime. Investigation must be by a woman police officer wherever possible. The survivor's statement under what is now Section 183 BNSS (previously Section 164 CrPC) is recorded by a magistrate, often by audio-video recording. Trial is in camera. The two-finger test stands abolished after Lillu v. State of Haryana (2013) and again in State of Jharkhand v. Shailendra Kumar Rai (2022). The presumption against consent under Section 120 BSA (previously Section 114A IEA) operates in the listed custodial and aggravated categories. Past sexual history is irrelevant under Section 51 BSA. Cross-examination on character is barred by the proviso to Section 152 BSA. The cognate offences of criminal force and assault under Sections 128 to 131 BNS may be charged in the alternative where the four-limb actus reus is not established.

Defences and the consent-on-promise line of cases

The recurrent defence is consent. The recurrent prosecution rejoinder is that the consent was vitiated by misconception of fact, fear, intoxication or the statutory bar of age. Three lines of authority structure the analysis. First, the Uday v. State of Karnataka, AIR 2003 SC 1639, line — consent given on a sincere promise of marriage that fails by external causes is not vitiated. Second, the Deepak Gulati and Dhruvaram Murlidhar Sonar line — consent obtained on a clandestine, never-intended promise is vitiated and the act is rape. Third, the Bhupinder Singh v. UT of Chandigarh, (2008) 8 SCC 531, line — a marriage void for the man's pre-existing subsisting marriage does not save him from rape liability where the woman's consent was given in ignorance of his marital status. The trial court's task in each case is the same: examine the man's contemporaneous conduct and reach a finding on his honest intention at the time of the inducement.

The general defences in Sections 14 to 44 BNS on general exceptions apply in principle but are very rarely available in a rape prosecution. Mistake of fact under Section 14 BNS cannot operate where the woman is below eighteen; intoxication under Section 23 BNS does not absolve a voluntarily intoxicated accused of an offence requiring no specific intent; and private defence does not extend to sexual aggression. The protected category is small: medical procedures (Exception 1 to Section 63 BNS), and intercourse with a wife above eighteen (Exception 2). Everything else is open territory for prosecution. The connected liberty offences in Sections 126 and 127 BNS on wrongful restraint and confinement are commonly charged together where the prosecutrix was held against her will, and Sections 137 to 144 BNS on kidnapping and abduction often add another charge sheet head where the survivor was taken away. Section 45 BNS on abetment and Section 61 BNS on criminal conspiracy bring in non-perpetrator accused — drivers, hotel staff, friends — who facilitated the offence.

Sentencing patterns and rehabilitation

Sentencing in rape prosecutions has shifted decisively towards the upper end of the band since the 2013 and 2018 amendments. Trial courts now routinely impose the statutory minimum of ten years for Section 64(1) cases and the heightened minimums for Sections 64(2), 65 and 70 cases. The Victim Compensation Scheme under Section 396 BNSS (previously Section 357A CrPC) supplements the fine. Whole-life sentences imposed under the 2013 amendment have been upheld where the facts are extreme — Sriharan v. Union of India, (2016) 7 SCC 1, the Constitution Bench, settled the conceptual basis. The murder/culpable homicide framework is invoked when the survivor dies, with separate convictions under Section 66 BNS and Section 103 BNS being the standard charge-sheet pattern.

Exam angle and quick recap

For any objective question on this cluster the four anchors are the four-limb actus reus, the seven descriptions of vitiated consent, the affirmative-consent rule of Explanation 2, and the marital-rape exception with its eighteen-year cut-off. For aggravated forms, memorise the fourteen clauses of Section 64(2) BNS and the death-penalty triggers in Sections 65(2) and 70(2) BNS. For evidence, remember the presumption under Section 120 BSA, the irrelevance of past sexual history under Section 51 BSA, and the abolition of the two-finger test. The forbidden-defence list is short and worth committing to memory: prior intimacy is not consent, absence of resistance is not consent, character is not relevant, the woman is not an accomplice, and corroboration is not a rule of law but a rule of prudence.

Frequently asked questions

What is the only substantive change the BNS makes to the law of rape compared with the IPC?

Exception 2 to Section 63 BNS. The age in the marital-rape exception has been raised from fifteen to eighteen, codifying the Supreme Court's reading-down in Independent Thought v. Union of India, AIR 2017 SC 4904. Sub-section (2) of Section 70 BNS also raises the gang-rape-on-minor age from twelve (under IPC Section 376DB) to eighteen. Apart from these and the cosmetic substitution of 'army' for 'military' in Section 64(2)(c), the substantive content of Sections 63 to 73 BNS is identical to the post-2013, post-2018 IPC text.

Is consent obtained on a promise of marriage always rape?

No. The Supreme Court in Deepak Gulati v. State of Haryana, AIR 2013 SC 2071, and Dhruvaram Murlidhar Sonar v. State of Maharashtra, 2019 (1) Scale 64, drew a clear line. Consent procured on a clandestine promise the man never intended to keep is consent obtained by misconception of fact under Section 28 BNS and is therefore no consent — the act is rape. Consent procured on a sincere promise that fails because of circumstances beyond the man's control is mere breach of promise — not rape. The trial court must examine contemporaneous conduct to find the truth.

Does the marital-rape question stand resolved under the BNS?

Only partly. Exception 2 now codifies that intercourse by a husband with a wife below eighteen is rape. The larger question — whether intercourse by a husband with an adult wife without her consent should attract Section 63 BNS — remains unresolved. The Delhi High Court delivered a split verdict in 2022; the matter is pending before the Supreme Court. Until the Court rules, the Exception continues to bar prosecution of an adult wife's husband under Section 63 BNS, though Section 67 BNS still applies if the spouses are living separately.

What is the rule on corroboration of the prosecutrix's testimony?

Corroboration is not a rule of law but a rule of prudence. The Supreme Court has repeatedly held — including in Krishna Iyer J's observations in Rafiq v. State of U.P. and Thakkar J's in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat — that the prosecutrix is not an accomplice, stands on a higher pedestal than even an injured witness, and her sole testimony, if found credible on a careful reading, is enough for conviction. The trial judge must consider the question of corroboration but may safely dispense with it where the prosecutrix's account is internally consistent and probable.

When does the death penalty become available in a rape prosecution?

In four situations: rape on a woman under twelve under Section 65(2) BNS; gang rape on a woman under eighteen under Section 70(2) BNS; rape causing the survivor's death or persistent vegetative state under Section 66 BNS; and a repeat conviction under Section 71 BNS. In every case the rarest-of-rare framework from Bachan Singh v. State of Punjab governs the sentencing choice — the statutory availability of death does not displace the requirement of recorded reasons preferring it over life imprisonment for the remainder of the convict's natural life.

Is Section 63 BNS gender-neutral?

No. Only a man can be the perpetrator and only a woman can be the victim under Section 63 BNS. Sexual abuse of male and transgender victims continues to be prosecuted under the law of unnatural offences (now consolidated within the BNS chapter on offences against the human body), read with the POCSO Act, 2012, where the victim is below eighteen. The Verma Committee had recommended a gender-neutral rape law; Parliament did not adopt the recommendation in either 2013 or in the BNS.