Section 63 Rape BNS - Offences Against Woman

Section 63 Rape.

63. Rape.- A man is said to commit "rape" if he- (a) 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

(b) 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

(c) 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; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:-

(i) against her will;

(ii) without her consent;

(iii) 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;

(iv) 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;

(v) 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;

(vi) with or without her consent, when she is under eighteen years of age;

(vii) when she is unable to communicate consent.

Explanation 1. - For the purposes of this section, "vagina" shall also include labia majora. Explanation 2. - Consent means 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: Provided that 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. Exception 1. - A medical procedure or intervention shall not constitute rape. Exception 2. - Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.

Definition

Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023 defines the offence of rape under Indian criminal law. The provision explains the various acts that legally amount to rape and the circumstances in which consent is considered invalid. The section aims to protect the dignity, bodily autonomy, and safety of women.

Under this section, rape is not limited only to sexual intercourse. The section also covers penetration using objects or body parts other than the penis, oral sexual acts, and any act causing penetration into the vagina, urethra, or anus of a woman without lawful consent. Even minimal penetration may be sufficient to constitute the offence.

Ingredients of Section 63 BNS (Rape)

To establish the offence of rape under Section 63 of the Bharatiya Nyaya Sanhita (BNS), the prosecution generally has to prove the following essential ingredients:

1. Sexual penetration or sexual act
   There must be penetration by penis, insertion of an object or body part, oral sexual act, or manipulation causing penetration as defined under the section.


2. The act must involve a woman
   The offence under Section 63 specifically relates to sexual acts committed against a woman.


3. Absence of valid consent
   The act must be committed without free, voluntary, and informed consent of the woman.


4. Against her will or without consent
   The sexual act may amount to rape if it is committed against the woman’s will or without her agreement.


5. Consent obtained through fear, threat, or deception
   Consent is not valid if obtained by:
   • Threat of death or injury
   • Fear or coercion
   • False identity or impersonation
   • Fraudulent misrepresentation


6. Mental incapacity or intoxication
   If the woman is unable to understand the nature and consequences of the act due to intoxication, unsoundness of mind, or administration of substances, the consent is legally invalid.


7. Victim below eighteen years of age
   Sexual acts with a girl below eighteen years constitute rape irrespective of consent.


8. Inability to communicate consent
   If the woman is unable to communicate willingness or refusal, the act may amount to rape.


9. Presence of mens rea (criminal intention)
   The accused must have intentionally committed the prohibited sexual act under circumstances falling within Section 63 BNS.

Non- Bailable

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