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By a process of judicial interpretation the provisions of S. 375, IPC cannot be altered so as to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vagina and finger/anal penetration and object /vaginal penetration within its ambit S. 375 uses the expression "sexual intercourse" but the said expression has not been defined. The dictionary meaning of the word "sexual intercourse" is hetrosexual intercourse involving penetration of the vagina by the penis. Prosecution of an accused for an offence under S. 376, IPC on radically enlarged meaning of S. 375, IPC i.e. by including all forms of penetration violate the guarantee enshrined in Art. 20(1) of the Constitution which says that no person shall be convicted of any offence except for violation of a law in foce at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. Such a wide wide definition so as to include all forms of penetration to be given to "rape" as defined in S. 375, IPC so that the same may become an offence punishable under S. 376, IPC has neither been considered nor accepted by any Court in India so far. Only sexual intercourse, namely, hetrosexunal intercourse involving penetration of the vagina by the penis coupled with the explanation that penetration is sufficient to constitute the sexual intercourse necessary for the offence of rape has been held to come within the purview of S. 375, IPC. An exercise to alter the definition of rape, as contained in S. 375, IPC, by a process of judicial interpretation, and that too when there is no ambiguity in the provisions of the enactment, is bound to result in good deal of chaos and confusion, and will not be in the interest of society at large.

The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what was not been said. As a consequence a construction which requires for its support addition or substitution of words or which results in rejection of words as meaningless has to be avoided. It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. Similarly, it is wrong and dangerous to proceed by substituting some other words for words of the statute. It is equally well settled that a statute enacting an offence or imposing a penalty is strictly construed. The fact that an enactment is a penal provision is in itself a reason for hesitating before ascribing to phrases used in it a meaning broader than that they would ordinarily bear.

Sections 354, 375 and 377, IPC have come up for consideration before the superior courts of the country on innumerable occasions in a period of almost one and a half century. Stare decisis is a well known doctrine in legal jurisprudence. The doctrine of stare decisis, meaning to stand by decided cases, rests upon the principle that law by which men are governed should be fixed, definite and known , and that, when the law is declared by court of competent jurisdiction authorised to construe it, such declaration, in absence of palpable mistake or error, is itself evidence of the law until changed by competent authority. It requires that rules of law when clearly announced and established by a Court of last resort should not be lightly disregarded and set aside but should be adhered to and followed. What it precludes is that where a principle of law has become established by a series of decisions, it is binding on the courts and should be followed in similar cases. It is a wholesome doctrine which gives certainty to law and guides the people to mould their affairs in future. There is absolutely no doubt or confusion regarding the interpretation of provisions of S. 375, IPC and the law is very well settled. The inquiry before the courts relate only to the factual aspect of the matter which depends upon the evidence available on the record and not on the legal aspect. Giving a wider meaning to S. 375, IPC will lead to a serious confusion in the minds of prosecuting agency and the Courts which instead of achieving the object of expeditiously bringing a criminal to book may unnecessarily prolong the legal proceedings and would have an adverse impact on the society as a whole.

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Category Civil Law, Other Articles by - KamalNayanSaxena