IPC 375 / 376 in the new BNS 2023

If you have been named in an FIR or notice under this section, the section number alone does not decide the outcome — the facts, the evidence and the procedure do. Many cases turn on procedural lapses, bail strategy and the exact ingredients of the offence.

The offence is defined at Section 63 of the Bharatiya Nyaya Sanhita and punished at Section 64. The definition is carried over from IPC 375 substantially intact, including the statutory meaning of consent introduced in 2013, but one exception changed in a way that matters, and the surrounding provisions were reorganised into a single sequence running from Section 63 to Section 73.

What the section requires

For the offence to be made out, these ingredients have to be established:

• the accused, being a man, did one of the acts the section describes with a woman
• the act was done against her will, or without her consent, or with a consent obtained by putting her or a person she is interested in in fear of death or hurt, or with a consent given under a misconception as to the identity of the man she believed herself married to, or with a consent given when she was unable to understand the nature and consequences of what she consented to, or with or without her consent where she is under eighteen years of age
• consent, where relied on, means an unequivocal voluntary agreement communicated by words, gestures or any form of verbal or non-verbal communication

What changed from the IPC

The most significant substantive change is in the second exception. Under IPC 375, Exception 2 provided that sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, was not rape. The Supreme Court had already read that down in Independent Thought v Union of India (2017), holding that the age had to be eighteen to be consistent with the law protecting children. BNS 63 codifies that position: the exception now reads that the wife must not be under eighteen years of age. Beyond that, the definition and the statutory explanation of consent — an unequivocal voluntary agreement, with the express clarification that a woman who does not physically resist cannot for that reason alone be taken to have consented — are carried over unchanged. The punishment at Section 64(1) is rigorous imprisonment of not less than ten years, which may extend to imprisonment for life, together with a fine.

How this section is distinguished from related offences

The provisions in this chapter are graded and the applicable one depends on the circumstances and the age of the victim. Section 64(1) covers the general offence. Section 64(2) covers aggravated forms — where the offence is committed by a police officer, a public servant, a member of the armed forces, a person on the management or staff of a jail, remand home or hospital, a relative, guardian, teacher or person in a position of trust or authority, during communal or sectarian violence, on a woman incapable of giving consent, or where grievous bodily harm is caused — and there the term of life imprisonment means imprisonment for the remainder of that person's natural life. Section 65 deals with rape on a woman under sixteen and under twelve. Section 66 covers cases where death or a persistent vegetative state results. Section 70 covers gang rape. Section 69 is a provision with no equivalent in the IPC, covering sexual intercourse obtained by deceitful means or by a promise to marry made without any intention of fulfilling it, punishable with up to ten years — conduct that was previously prosecuted, with considerable difficulty, under the general rape provision.

How the case proceeds

The offence is cognizable and non-bailable and is tried by a Court of Session. A substantial body of protective procedure applies and it comes largely from the Bharatiya Nagarik Suraksha Sanhita rather than from the BNS: the statement of the victim is to be recorded by a woman police officer, and where she is temporarily or permanently disabled the statement is to be video-recorded; her statement before a magistrate is recorded under the provisions applicable to such cases; medical examination is to be conducted promptly by a registered medical practitioner with consent; the trial is conducted in camera; and the investigation is to be completed within two months from the recording of information. Section 72 of the BNS makes it an offence to print or publish anything disclosing the identity of the victim.

Evidence that usually decides these cases

These cases are decided on contemporaneous material far more than on the strength of competing accounts at trial. The first information and its timing, the statement recorded before a magistrate, and the medical examination report are the core, and the medical report is significant for what it records about the examination as a whole rather than solely for injuries, since the absence of injury does not disprove the offence. Forensic evidence, where collected promptly and handled with an unbroken chain of custody, carries substantial weight, and defects in that chain are among the most common grounds of challenge. Call detail records, location data, CCTV and messages before and after the alleged incident are relied on by both sides to establish or contradict the movements and the relationship of the parties. Indian law permits conviction on the sole testimony of the victim where it inspires confidence, and corroboration is not a legal requirement, so the internal consistency and quality of that testimony is central.

How courts approach sentencing

Under Section 64(1), rigorous imprisonment of not less than ten years, which may extend to imprisonment for life, together with a fine. Under Section 64(2), covering the aggravated categories, rigorous imprisonment of not less than ten years which may extend to imprisonment for life, meaning imprisonment for the remainder of that person's natural life, together with a fine. The fine is to be just and reasonable to meet the medical expenses and rehabilitation of the victim and is payable to her.

Defences that commonly apply

Where the fact of the act is not in dispute, consent is the issue, and it is assessed against the statutory definition rather than by inference from conduct that the law expressly says is not determinative. Material bearing on it includes the communications between the parties before and after, the circumstances in which they were together, and any objective record of what occurred. Where identity is in issue, the reliability of identification and the forensic evidence are the battleground. Alibi supported by objective records — location data, travel records, CCTV — is a complete answer where it can be established. Delay in the first information is a matter courts approach with caution in this category, recognising that there are well-understood reasons for it, so it is rarely decisive on its own but is examined alongside everything else. Defects in the forensic chain of custody are a recognised and frequently effective line of challenge.

How a case under this section typically progresses

The law requires the investigation to be completed within two months of the recording of information, and the trial to be concluded as expeditiously as possible, with the provisions contemplating completion within two months from the filing of the charge sheet. Those timelines are frequently not met in practice, but they are enforceable and can be pressed. The case is committed to a Court of Session, the trial is held in camera, and the recording of the victim's evidence is the central event. Bail is contested early and is generally pursued to the High Court where refused.

Documents worth gathering early

The contemporaneous records are what matter and they degrade quickly. Obtain the first information as originally recorded, with its exact time. Obtain the complete medical examination report rather than a summary, together with the forensic report and, critically, the full chain of custody documentation for every sample. Preserve complete message threads and call detail records for both parties covering the period before and after, in original form on the original devices rather than as extracts, since selective extracts from a longer exchange are the most common source of error in these cases. Request CCTV from every relevant location in writing immediately. Where either party travelled, secure the travel and transport records. Nothing in this area should be approached without an advocate.

Note on bail and cognizability. Whether an offence is cognizable, and whether it is bailable, is set by the First Schedule to the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, not by the BNS section itself. Because that classification decides whether police can arrest without a warrant and how bail is approached, check it for your specific section with an advocate rather than relying on a general summary.

If you have been named under this section

This is among the most serious charges in the Sanhita and it should not be approached without representation from the outset, because decisions taken in the first days — what is said, what is recorded, whether medical examination is sought — shape everything that follows. The single most important thing anyone in this situation can be told is that the case will be decided on contemporaneous records: the first information, the medical examination, and the electronic and location records fixing the movements of both parties. Those records are created or lost within days.

Common misunderstandings

"The marital exception age is still fifteen."
It is eighteen under BNS 63. The Supreme Court read the IPC exception down to eighteen in Independent Thought v Union of India (2017), and the BNS codifies that.

"Absence of physical resistance means consent."
The statutory explanation says the opposite: a woman who does not physically resist cannot for that reason alone be regarded as consenting. Consent means an unequivocal voluntary agreement.

"A false promise of marriage falls under the rape provision."
The BNS created a separate offence for it at Section 69, covering sexual intercourse obtained by deceitful means or a promise to marry made without intending to fulfil it, punishable with up to ten years.

"The complainant can withdraw the case."
The offence is non-compoundable and is prosecuted by the State. A complainant resiling from her account affects the evidence but does not end the prosecution.

Related BNS sections

• BNS 63 — Rape
• BNS 64 — Punishment for rape
• BNS 65 — Rape on a woman under sixteen and under twelve
• BNS 70 — Gang rape (IPC 376D)
• BNS 69 — Sexual intercourse by deceitful means or false promise of marriage

Which code applies to your case

The Bharatiya Nyaya Sanhita 2023 replaced the Indian Penal Code 1860 with effect from 1 July 2024, and the change is not retrospective. The date the offence is alleged to have been committed decides which code governs it. An offence alleged to have occurred on or after 1 July 2024 proceeds under the BNS. An offence alleged to have occurred before that date continues to be investigated, tried, appealed and punished under the IPC, even where the FIR was registered later. Cases from the transition period frequently cite both numbering systems, which is why the old section number remains worth knowing.

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General information for understanding the IPC→BNS change, not legal advice. The BNS restructured many offences — confirm the exact section, sub-section and punishment with a licensed advocate.