To sell or otherwise dispose of an innocent minor for the purpose of being brought up as a dancing girl, or devoted to a pagoda in that capacity, is an offence under s. 372; and to buy or receive a girl for such purpose is an offence under s. 373, inasmuch as it is notorious that prostitution is part of the profession of a dancing girl. (5 Mad. HC. 415. C. Bomb. CC. 60.)

Unlawful compulsory labour.

374. Whoever unlawfully compels any person to labour against the will of that person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

The word "labour" has not been defined, and, therefore, will apply either to mental or bodily labour, though probably the last species was principally contemplated by the framers of the Code. The word "unlawfully" applies both to the person compelled and the means resorted to. It is not unlawful to compel a child, a scholar, or an apprentice to work, even by means of personal chastisement, when of a moderate nature (ante p. 258). It is unlawful to compel a servant, or a person who is under a contract to labour, by means of personal violence, though it would be lawful to do so by moral compulsion, as threats of legal coercion. It would be unlawful to compel a person, who was not under an obligation by contract, to do work against his will, whatever the species of compulsion might be. I conceive, however, that the compulsion employed must be such as amounts in law to duress, and must at least be as great as would vitiate a contract. For instance, actual violence, or restraint, an illegal arrest, (Duke de Cadaval v. Collins, 4 A. & E. 858,) an unlawful detainer of goods, (Wakefield v. Newbon, 6 QB. 276,) a refusal to perform an act which the party employing the compulsion was legally bound to do, (Traherne v. Gardener, 25 LJ. QB. 201. 8 E. & B. 161.) Mere threats of personal enmity, hostile influence, withdrawal of favor, and the like would not be sufficient.

Rape.

OF RAPE.

375. A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions

First.-Against her will.

Secondly.-Without her consent.

Thirdly. With her consent, when her consent has been obtained by putting her in fear of death or of hurt.

H

Fourthly. 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.

Fifthly. With or without her consent, when she is under ten years of age.

Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception.-Sexual intercourse by a man with his own wife, the wife not being under ten years of age, is not rape.

376. Whoever commits rape shall be punished Punishment for with transportation for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

rape.

Upon a second conviction for this crime the offender is also liable to whipping. (Act VI of 1864, s. 4.) The essence of the offence of rape consists in its being committed against, or without, the consent of the female. Accordingly, the offence is complete if committed when the woman is incapable of giving a consent, as, for instance, where she is under the influence of stupefying drugs, or insensible from drink, or, from mental imbecility, is unconscious of the nature of the act which is taking place. Nor is it any excuse that she consented at first, if the act was afterwards committed against her will, or that she consented after the fact, or from fear of injury, or under circumstances which rendered a successful resistance impossible. Nor is the mere cessation of a genuine resistance a sufficient evidence of consent. (1 W. R. C. C. 21.) Nor can it be set up as any defence that the woman was a common prostitute, or even that she was the concubine of the prisoner, if not legally united to him; for, however vicious her course of life, she is still entitled to the protection of the law, and may try to be virtuous whenever she chooses. (Arch. 610.)

In England, it is held that the consent produced by mere animal instinct would be sufficient to prevent the act from constituting a rape, and that even in the case of an idiot some evidence of want of consent is necessary. (Reg. v. Fletcher, 21 LJ. MC. 85. Bell 63. Reg. v. Fletcher, 1 LR. CC. 39.) But under the Code it would seem to be different, since by s. 90"a consent is not such a consent as intended by any Section of the Code," if it is "given by a person who, from unsoundness of mind, is unable to understand the nature and consequence of that to which she gives consent." (See ante, p. 66.)

The fourth clause of s. 375 is opposed to the decision of all the English authorities, who in several cases arrived at the conclusion that where a woman actually was a consenting party to the act though under the influence of mistake, the essential ingredient in the offence was wanting. It is obvious that such an assertion, when put forward by a married woman, requires to be scrutinized most suspiciously before it is accepted as true. Where there has been intimacy between the prisoner and the female, there will always be strong reason to suspect that the charge was set up to obviate the consequences of detection.

In the majority of cases, the only direct evidence of the rape is that of the prosecutrix herself. Where this breaks down, or cannot be obtained, as where the female from extreme youth or from some incapacity, such as being deaf and dumb, cannot give her testimony, and there is no other evidence producible (see Reg. v. Whitehead, 1 LR. CC. 33), there is nothing for it but to acquit. Her evidence should always be received, not with distrust, but with caution, remembering that the charge is one easy to make and hard to refute. The first thing necessary to examine in support of her statement is, whether there is any indirect evidence that sexual connection took place. Upon this point it is most important to have the evidence of a medical man as to the state of the parts. In India such evidence is often unattainable, but it would certainly be a suspicious circumstance if no female relation were produced to testify to marks or injury or the like. The next thing is to see, whether the connection, if it took place, was against her will. For this purpose all the surrounding circumstances should be carefully sifted. The character of the prosecutrix, her intimacy with the prisoner, and the amount of familiarity which she had formerly permitted him to indulge in; the place in which the act took place, as shewing that she might have obtained assistance; the distance at which other persons were passing by; any screams or cries which were heard, her conduct immediately after the outrage, her appearance, and so forth. (See Arch. 610.)

Evidence is admissible to show that the prosecutrix is a common prostitute, or that she has had previous connection with the prisoner, for both of these are material facts bearing directly upon the question of consent. But, although the prosecutrix may be asked on crossexamination whether she has not had illicit connection with other men, her answer is final, and evidence to contradict her is inadmissible. It is plain that such evidence would only go to her character. The fact that a woman has had voluntary, though unlawful, intercourse with A, is not even primâ facie evidence that she would submit to the same intercourse with Z, unless she is shown to make a trade of her person. (Reg. v. Holmes, 1 LR. CC. 334. Act I of 1872, s. 153.)

Under the Evidence Act (I of 1872, s. 8. illus. j.) not only the fact that the prosecutrix made a complaint is admissible in evidence, but the terms of the complaint. This lets in all those particulars, including the name of the man, which the English law, with its over tenderness to the prisoner, excludes.

We have seen that the badness of a woman's character is no excuse for violating her. It is, however, a very important element in deciding whether she was violated, or whether she voluntarily consented to the act. Hence, the prisoner may always adduce evidence of her

notorious want of chastity, or of her having had illicit intercourse with himself, or with other men; but it would seem that evidence of such particular facts cannot be given, unless the prosecutrix has been cross-examined upon the point. Because, in fairness to her, she ought to be allowed to deny the accusation if false, or to explain any circumstances of suspicion. (Arch. 610.) Where it is necessary to acquit the prisoner of rape, on the ground of consent, he cannot be convicted of adultery (1 M. Dig. 176, § 518 and 519); but he may of an attempt to rape, if the facts show that the offence was not completed. (Act XVIII of 1862, s. 17. and see Cr. P. C. s. 457.)

There would be nothing to prevent the Judge from altering the charge from rape into adultery during the course of trial (Cr. P. C. s. 445), provided the charge was instituted by the woman's husband. (Cr. P. Č. 478.)

Although a husband cannot commit a rape upon his own wife, who is above 10 years of age, he may be indicted for aiding and abetting in a rape committed by others, a very disgusting instance of which occurred in the case of Lord Audley. (Arch. 235.)

By the English law, as mentioned in p. 58, there is an invincible presumption as to the impossibility of a rape being committed by a boy under fourteen. Here, probably, an earlier date would be fixed, and possibly the Court might follow some of the American Judges in treating physical capacity as a matter capable of proof, and to be proved, independently of any arbitrary presumption. (1 Bishop § 466.)

Where a boy, only ten years old, was convicted by the Futwa of rape upon a girl only three years old, the Court of N. A. viewed it as an attempt only, and punished it as a misdemeanour with one year's imprisonment. (1 M. Dig. 146, § 531.) He may, however, be convicted of aiding and abetting in a rape by others. (Arch. 610.)

fence.

OF UNNATURAL OFFENCES.

377. Whoever voluntarily has carnal intercourse against the order of nature with any Unnatural of- man, woman, or animal, shall be punished with transportation for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Upon a second conviction for this crime the offender is also liable to whipping. (Act VI of 1864, s. 4.)

Explanation.-Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in the Section.

CHAPTER XVII.

OF OFFENCES AGAINST PROPERTY.

378.

OF THEFT.

Whoever, intending to take dishonestly any moveable property out of the Theft. possession of any person without that person's consent, moves that property, in order to such taking, is said to commit theft.

Explanation 1.-A thing so long as it is attached to the earth, not being moveable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.

Explanation 2.-A moving, effected by the same act which effects the severance, may be a theft.

Explanation 3.-A person is said to cause a thing to move, by removing an obstacle which prevents it from moving, or by separating it from any other thing, as well as by actually moving it.

Explanation 4.-A person who by any means causes an animal to move is said to move that animal, and to move every thing which, in consequence of the motion so caused, is moved by that animal.

Explanation 5.-The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either expressed or implied.

Illustrations.

(a) A cuts down a tree on Z's ground, with the intention of dishonestly taking the tree out of Z's possession without Z's consent. Here, as soon as A has severed the tree, in order to such taking, he has committed theft.

(b) A puts a bait for dogs in his pocket, and thus induces Z's dog to follow it. Here, if A's intention be dishonestly to take the dog out of Z's possession without Z's consent, A has committed theft as soon as Z's dog has begun to follow A.