The word rape is derived from the Latin term rapio, which means to seize. Thus, it literally means a forcible seizure and that is the essential characteristic feature of the offense. In common parlance, it means intercourse with a woman without her consent by force, fear, or fraud

Sec.375 of IPC explains that Rape is “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation, or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case if she is under 18 years of age.”

Ingredients Of The Offence Of Rape:

The following are the essential ingredients of the offence of rape

1. There must be sexual intercourse with a woman by a man;
2. Such sexual intercourse should be under any of the following circumstances:
   1. Against her will
   2. Without her consent,
   3. With consent obtained under fear of death or hurt,
   4. With consent given under the misconception of the fact that the man is her husband but the man knows that he is not her husband,
   5. Consent is given because of unsoundness of mind, intoxication, or under the influence of any stupefying or unwholesome substance,
   6. With a woman under 16 years of age with or without consent.

Under the Criminal Law (Amendment) Act, 1983, Section 375 inserted a new clause fifthly dealing with consent because of unsoundness of mind or intoxication, besides the addition of words or any person in whom she is interested in clause thirdly; and thus the scope of Section 375 IPC has been widened.

The High Court of Jammu & Kashmir and Ladakh recently observed that the offence of rape can be established even if there is no injury to the genitals of the survivor or semen stains left behind by the accused. [Bodh Raj v. State of Jammu and Kashmir & Ors.]

Justices Sanjay Dhar and Rajesh Sekhri also noted that a medical expert treating a rape survivor can only certify if there is any evidence of recent sexual activity and they cannot have a final say on whether the offence of rape has been committed.

That is the task of the courts, the High Court underlined.

“Rape cannot be diagnosed by a doctor. A medical expert treating a rape survivor can only certify any evidence of recent sexual activity. It is none of his business to opine whether rape is committed or not. Rape is a judicial determination,” the Court said.

The judges explained that since rape is a crime, it is only for a court to determine whether rape within the meaning of Section 375 of the Indian Penal Code is made out or not, the bench said.

“Offence of rape can be established even without producing any injury to the genitals or leaving any seminal stains,” the bench added.

The High Court observed while dismissing an appeal filed by one Bodh Raj who was convicted for the rape of his one-year-old granddaughter.

On a medical examination, a doctor found that the child’s hymen had been torn and there were fresh injuries on her genitals. The doctor had initially opined that it could be a sexual assault, although other possibilities could not be ruled out.

Among other contentions, Raj’s counsel argued that the absence of any clear-cut opinion and semen stains cast doubt on the prosecution’s case against Raj.

However, the doctor later testified that the injuries on the child indicated that she was sexually assaulted and that there was penetration.

The High Court ultimately upheld the conviction and life imprisonment sentence imposed on Raj.

“The doctor has opined that given the injuries found on the victim, it was surely a case of penetration. In such circumstances, absence of seminal stains pales into insignificance and would not come to the rescue of the appellant,” the Court observed.