Rape and Murder of Women under BNS: Section 66, Death Penalty and Landmark Cases

Where rape ends in the victim's death, the criminal law responds with its heaviest sanctions. Section 66 of the Bharatiya Nyaya Sanhita, 2023, formerly Section 376A IPC, is the specific provision that punishes rape causing death or reducing the victim to a persistent vegetative state. It carries a minimum of twenty years, extending to imprisonment for the remainder of natural life, or death. The provision was introduced by the 2013 Criminal Law (Amendment) Act in the aftermath of the December 2012 Delhi gang rape, in which the victim's fatal injuries were of exactly this character. Alongside Section 66, the general offence of murder under Section 103 BNS may also be charged, and the rarest of rare doctrine of Bachan Singh v. State of Punjab governs the imposition of the death penalty. This module walks through the statutory framework, the doctrinal questions of charging and sentencing, and the landmark cases from Dhananjoy Chatterjee to the Nirbhaya and Kathua judgments.

1. Introduction

The gravest of sexual offences

Rape is a grave offence in itself. When rape ends in the victim's death, whether by intent or as a consequence of the injuries inflicted, the offence enters the category of the very gravest crimes known to the criminal law. It combines the violation of sexual autonomy that rape represents with the ultimate violation, the taking of life. The Indian criminal law's response has become progressively more severe: from the 2013 introduction of Section 376A IPC (now Section 66 BNS), which permits the death penalty, through the 2018 amendment that added death for rape of a woman under twelve, to the modern application of the rarest of rare doctrine in the Nirbhaya and Kathua cases.

Statutory response and constitutional considerations

The statutory response is severe. Section 66 BNS provides a minimum of twenty years, extending to life meaning natural life, or death. The constitutional considerations are equally serious. The death penalty must be applied within the rarest of rare framework of Bachan Singh v. State of Punjab. The Court must consider both the aggravating factors (the brutality of the offence, the vulnerability of the victim) and the mitigating factors (the offender's age, background, and the possibility of reform). The balance is not mechanical, and the Court has emphasised that even in the gravest cases, life imprisonment should be considered as an alternative.

2. Statutory Framework

Section 66 BNS: the specific provision

Section 66 BNS is the specific provision that punishes rape resulting in death or persistent vegetative state. It was introduced by the Criminal Law (Amendment) Act, 2013, as Section 376A IPC, in the aftermath of the December 2012 Delhi gang rape. It has been retained unchanged in the BNS as Section 66. The provision reflects a legislative recognition that rape causing death is different in kind from ordinary rape, and warrants a distinct statutory sanction.

Section 103 BNS (murder) read with Section 63 (rape)

Where the accused is proved to have committed both rape (Section 63 BNS) and murder (Section 103 BNS), the two offences may be charged separately. The prosecution then proves the two offences on their own merits, and the accused may be convicted of both. This charging approach is often adopted where the intention to kill can be proved independently of the rape, or where the killing was clearly separate in time from the rape.

Section 65(2) BNS: rape of a woman under twelve, with death

Section 65(2) BNS, introduced by the 2018 amendment, provides that rape of a woman under twelve years is punishable with rigorous imprisonment of not less than twenty years, extending to life meaning natural life, or death. This provision applies where the victim is under twelve, whether or not she dies from the rape. Where she does die, Section 66 also applies, and the court may impose the death penalty under either provision.

3. Section 66 BNS: Text and Ingredients

Text of Section 66

Section 66 BNS (formerly Section 376A IPC)

Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of Section 64 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, or with death.

The four ingredients

The four cumulative ingredients of Section 66

The accused committed an offence punishable under Section 64(1) or 64(2) BNS (that is, rape or aggravated rape).
In the course of that commission, the accused inflicted an injury.
The injury caused the death of the woman, OR caused her to be in a persistent vegetative state.
The injury and its consequence are directly connected with the commission of the rape (in the course of).

Meaning of persistent vegetative state

Persistent vegetative state is a medical condition in which the patient shows no meaningful responsiveness or awareness of self or environment, though basic physiological functions continue. The term was included in the 2013 amendment following medical evidence in the Nirbhaya case, in which the victim's injuries could conceivably have left her in such a state had she survived. The legislative inclusion of persistent vegetative state alongside death recognises that the gravity of the injury is comparable, and the sanction should be as well.

4. Charging Framework

Section 66 alone

Where the prosecution relies on Section 66 BNS alone, the charge is that the accused committed rape and, in the course of it, inflicted injury causing death or persistent vegetative state. The prosecution must prove: (i) the rape; (ii) the injury; (iii) the causal connection between the rape and the injury; and (iv) the death or persistent vegetative state as the consequence. The intention to kill need not be proved; the causal connection between the rape injury and the death is enough.

Sections 63/64 and 103 charged separately

The prosecution may also charge rape (Section 63/64 BNS) and murder (Section 103 BNS) as separate offences. This is appropriate where:

The intention to kill can be proved independently of the rape. The accused may have raped the victim and then, separately, killed her to eliminate the witness.
The killing was in a distinct act, separated in time or by intervening conduct, from the rape.
The prosecution seeks the potentially higher sentence under Section 103 (life imprisonment or death for murder).

Where both charges are sustained, the accused may be convicted of both offences and sentenced separately (subject to the rule against double punishment for the same act). The Nirbhaya case is a classical example, with the accused convicted of both Section 376D (gang rape, now Section 70 BNS), Section 376A (now Section 66 BNS), and Section 302 IPC (now Section 103 BNS).

Common intention and gang rape considerations

Where rape and murder are committed by a group, Section 3(5) BNS (common intention) attaches liability to each member of the group. Combined with Section 70 (gang rape) and Section 66, the framework catches every member of the group for the most serious substantive offence. Where the common intention includes not merely rape but also murder (or where the natural consequence of the rape was foreseeable death), each member is liable for the murder as well as the rape.

5. The Rarest of Rare Doctrine

Bachan Singh v. State of Punjab

📖 Bachan Singh v. State of Punjab, (1980) 2 SCC 684

The Supreme Court, in a five judge Constitution Bench, upheld the constitutional validity of the death penalty but confined its imposition to the rarest of rare cases where the alternative option of life imprisonment is unquestionably foreclosed. The judgment established the classical framework for capital sentencing in India. The Court required the balancing of aggravating and mitigating circumstances, and the presumption in favour of life imprisonment except in the most extreme cases.

Machhi Singh v. State of Punjab

📖 Machhi Singh v. State of Punjab, (1983) 3 SCC 470

The Supreme Court laid down five categories of aggravation to guide the rarest of rare inquiry: (i) manner of commission of the offence (extreme brutality); (ii) motive (calculated cruelty or depravity); (iii) socially abhorrent nature (offences against the vulnerable, communal violence); (iv) magnitude of the offence (large scale killings); and (v) personality of the victim (children, defenceless persons, public servants). Rape resulting in death frequently satisfies categories (i), (iii) and (v).

The five categories of aggravation

Manner: extreme brutality, mutilation, torture.
Motive: calculated cruelty, sadism, sexual gratification through cruelty.
Nature: socially abhorrent offences that shock the community's conscience.
Magnitude: large scale offences involving multiple victims.
Victim: children, disabled persons, defenceless persons.

Balance of aggravating and mitigating factors

The Court, in Bachan Singh and Machhi Singh, requires balancing aggravating factors against mitigating ones. Aggravating factors in rape and murder cases typically include the brutality of the offence, the vulnerability of the victim, and the absence of provocation. Mitigating factors typically include the age of the offender (young offenders are treated more leniently), the offender's background, the absence of premeditation, and the possibility of reform. The Court has emphasised, particularly in Santa Singh v. State of Punjab and Mithu v. State of Punjab, that mandatory death is unconstitutional; the Court must retain discretion.

6. Sentencing Considerations in Rape and Murder

The brutality of the offence

The brutality of the offence is the single most important aggravating factor. Where the rape involves extreme violence, mutilation, prolonged torture, or particularly degrading conduct, the case moves closer to the death penalty end of the spectrum. The Nirbhaya case, in which the victim suffered horrific internal injuries from the use of an iron rod, is the paradigm modern example.

The vulnerability of the victim

The vulnerability of the victim is a significant aggravating factor. Rape of a child (Kathua: eight year old victim), of a woman with disabilities, of an elderly woman, or of a woman in a position of dependence on the accused (as in Priyadarshini Mattoo's stalker case) all attract enhanced consideration. The 2018 amendment codified this in Section 65(2) BNS (rape of a woman under twelve with death penalty).

The offender's background

The offender's background is considered as both aggravating and mitigating. Prior convictions for sexual offences (Section 71 BNS, repeat offenders) are strongly aggravating. Youth of the offender, family responsibilities, and background of deprivation may be mitigating. Nirbhaya's juvenile offender was excluded from the death penalty and was sentenced under the Juvenile Justice Act.

The possibility of reform

The possibility of reform is a critical mitigating factor. The Court has emphasised that the death penalty must be reserved for cases where the offender is beyond reform, where the crime shocks the community's conscience so deeply that no lesser sentence would meet the ends of justice. In cases where reform is genuinely possible, life imprisonment (specific-term or ordinary) is the preferred alternative.

7. Landmark Cases

Dhananjoy Chatterjee v. State of West Bengal

📖 Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220

The accused, a security guard, raped and murdered Hetal Parekh, a fourteen year old girl, in her flat in Kolkata. He was convicted of rape and murder and sentenced to death. The Supreme Court upheld the sentence, applying the rarest of rare doctrine. The victim's vulnerability, the abuse of the trust of a security guard's position, and the brutal nature of the offence supported the sentence. Dhananjoy Chatterjee was hanged on 14 August 2004, one of the last executions carried out in India before Nirbhaya. Rule: modern application of the rarest of rare doctrine in a rape and murder case.

Mukesh v. State (NCT of Delhi): the Nirbhaya case

📖 Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1

On the night of 16 December 2012, a young woman was gang raped in a moving bus in Delhi by six accused. The rape involved extreme brutality, including the use of an iron rod that caused massive internal injuries. The victim died thirteen days later in a Singapore hospital. One of the accused was a juvenile; another died in custody. The remaining four adult accused were convicted of gang rape (Section 376D IPC, now Section 70 BNS), rape causing death (Section 376A IPC, now Section 66 BNS), murder (Section 302 IPC, now Section 103 BNS), and other offences. The Supreme Court upheld the death sentence for all four, applying the rarest of rare doctrine. The judgment observed that if this case did not qualify as rarest of rare, no case would. The four accused were executed on 20 March 2020.

The Nirbhaya case triggered the Justice J. S. Verma Committee, the Criminal Law (Amendment) Act, 2013, the introduction of Section 376A IPC (now Section 66 BNS), and comprehensive reforms in the definition and punishment of rape. Rule: Section 376A IPC (now Section 66 BNS) applied. Death sentence confirmed under rarest of rare doctrine.

Mohd. Anwar v. State of NCT of Delhi

📖 Mohd. Anwar v. State of NCT of Delhi, (2020) 7 SCC 391

The Supreme Court considered the sentencing framework in a case of rape and murder of a child. The Court emphasised that the sentencing court must undertake a detailed inquiry into the possibility of reform. The prosecution must show, and the Court must find, that the offender is beyond reform. The judgment refined the modern approach to capital sentencing in rape and murder cases.

The Kathua case

📖 Mohammad Akhtar v. State of Jammu and Kashmir (Kathua case)

The rape and murder of an eight year old girl from the Bakerwal nomadic community in Kathua district of Jammu and Kashmir in January 2018 shocked the country. The victim was held captive in a Hindu temple for several days, drugged, gang raped and finally killed. Six accused were tried in a fast track court in Pathankot (moved from Kathua for security reasons). The trial concluded in 2019 with three of the accused sentenced to life imprisonment. The case prompted the Criminal Law (Amendment) Act, 2018, introducing the death penalty for rape of a woman under twelve years (Section 376AB IPC, now Section 65(2) BNS). Rule: rape of a minor combined with sectarian motivation and calculated brutality attracts the highest sanctions.

Priyadarshini Mattoo case

📖 State (Through CBI) v. Santosh Kumar Singh, (2010) 9 SCC 747

Priyadarshini Mattoo, a young law student, was raped and murdered by Santosh Kumar Singh, the son of a senior police officer, in Delhi in 1996. The trial court initially acquitted him despite significant evidence, and the Delhi High Court reversed the acquittal in 2006, convicting him and sentencing him to death. The Supreme Court, in 2010, upheld the conviction but commuted the death sentence to life imprisonment, holding that the case did not fall within the rarest of rare category. Rule: not every rape and murder case attracts the death penalty. Mitigating factors, including the age of the accused and the possibility of reform, may support the alternative of life imprisonment.

Nirbhay Singh v. State of Madhya Pradesh

📖 Nirbhay Singh v. State of Madhya Pradesh, (1972) 3 SCC 583

An older case in which the Supreme Court considered the framework for sentencing in rape and murder. Though decided before the modern statutory framework, the judgment established principles that continue to influence the treatment of rape and murder cases.

8. The Bilkis Bano Case: Remission Controversy

📖 Bilkis Yakub Rasool v. Union of India, (2024) SCC OnLine SC 26

Bilkis Bano was gang raped and members of her family, including her three year old daughter, were murdered during the 2002 Gujarat riots. Eleven accused were convicted and sentenced to life imprisonment. In August 2022, the eleven were released on remission by the Gujarat government. The remission was challenged before the Supreme Court. In January 2024, the Supreme Court quashed the remission, holding that the Gujarat government had no jurisdiction to grant it (the appropriate government was Maharashtra, where the trial had been held), and that the remission was granted in violation of law. The accused were ordered to return to custody. Rule: remission of sentences in rape and murder cases must strictly follow the law, and the appropriate government (not the state of the offence) has jurisdiction. Public interest and the victim's rights weigh heavily against premature remission in cases of grave sexual violence.

9. The Public Response and the Justice J. S. Verma Committee

The Nirbhaya case prompted nationwide protests and led to the constitution of the Justice J. S. Verma Committee in December 2012. The committee comprised Justice J. S. Verma (former Chief Justice of India), Justice Leila Seth, and Gopal Subramanium. It submitted its report within thirty days, in January 2013. The recommendations shaped the Criminal Law (Amendment) Act, 2013, and continue to shape the framework of the BNS.

Key recommendations of the Verma Committee retained in the BNS

Introduction of Section 376A IPC (now Section 66 BNS) punishing rape resulting in death or persistent vegetative state.
Widened definition of rape to include non peno-vaginal penetration.
Enhanced punishments across the board, with minimum ten years for ordinary rape.
Introduction of Sections 354A to 354D IPC (sexual harassment, disrobing, voyeurism, stalking; now Sections 75 to 78 BNS).
The Committee's recommendation to criminalise marital rape was not adopted. This remains contested and is now before the Supreme Court.

The Kathua case triggered a further legislative response, the Criminal Law (Amendment) Act, 2018, which introduced the death penalty for rape of a woman under twelve (Section 376AB IPC, now Section 65(2) BNS) and further enhanced punishments.

10. Consolidated Landmark Judgments

Bachan Singh v. State of Punjab, (1980) 2 SCC 684. Rarest of rare doctrine. Constitutional validity of death penalty.
Machhi Singh v. State of Punjab, (1983) 3 SCC 470. Five categories of aggravation. Refinement of the rarest of rare framework.
Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220. Rape and murder of Hetal Parekh. Death sentence confirmed.
Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1. Nirbhaya case. Death sentence confirmed under Section 376A IPC (now Section 66 BNS).
State (CBI) v. Santosh Kumar Singh, (2010) 9 SCC 747. Priyadarshini Mattoo case. Death sentence commuted to life.
Mohd. Anwar v. State of NCT of Delhi, (2020) 7 SCC 391. Detailed inquiry into possibility of reform required.
Bilkis Yakub Rasool v. Union of India, (2024) SCC OnLine SC 26. Remission quashed. Appropriate government principle affirmed.
Ravji v. State of Rajasthan, (1996) 2 SCC 175. Rarest of rare applied in a rape and murder case.
Vasanta Sampat Dupare v. State of Maharashtra, (2017) 6 SCC 631. Death sentence confirmed for rape and murder of a child.
Purushottam Dashrath Borate v. State of Maharashtra, (2015) 6 SCC 652. Death sentence for rape and murder of a call centre employee.
Deepak Kumar v. State (NCT of Delhi), (2019) 12 SCC 168. Framework for capital sentencing in modern rape and murder cases.
Manoj v. State of Madhya Pradesh, (2023) 2 SCC 353. Guidelines for the collection and consideration of mitigating factors in death sentence cases.
Mithu v. State of Punjab, (1983) 2 SCC 277. Mandatory death penalty unconstitutional. Court must retain discretion.

Frequently Asked Questions

What is Section 66 BNS?

Section 66 of the Bharatiya Nyaya Sanhita, 2023 (formerly Section 376A IPC), punishes rape resulting in death or persistent vegetative state. The offence carries rigorous imprisonment for not less than twenty years, extending to life meaning natural life, or death. It was introduced by the Criminal Law (Amendment) Act, 2013, following the Nirbhaya case. The Nirbhaya trial itself, in Mukesh v State (NCT of Delhi) (2017), applied the provision and confirmed the death sentence.

What is the difference between Section 66 BNS and charging Sections 63 and 103 separately?

Section 66 BNS applies where the injury inflicted during the rape causes death or persistent vegetative state, without necessarily proving a separate intention to kill. Charging Sections 63/64 (rape) and 103 (murder) separately is appropriate where the intention to kill can be proved independently of the rape, or where the killing was a distinct act. Where both charges are sustained, the accused may be convicted of both.

What is the rarest of rare doctrine?

The rarest of rare doctrine, laid down in Bachan Singh v State of Punjab, (1980) 2 SCC 684, confines the death penalty to cases where the alternative option of life imprisonment is unquestionably foreclosed. Machhi Singh v State of Punjab, (1983) 3 SCC 470, set out five categories of aggravation. In rape and murder cases, the brutality of the offence, the vulnerability of the victim, and the absence of any possibility of reform are the critical considerations.

What was the significance of the Nirbhaya case?

The Nirbhaya case (Mukesh v State (NCT of Delhi), (2017) 6 SCC 1) was a landmark in Indian criminal law. Beyond the judicial decision, it triggered the Criminal Law (Amendment) Act, 2013, the introduction of Section 376A IPC (now Section 66 BNS), and comprehensive reforms based on the Justice J S Verma Committee's report. The four adult accused were executed on 20 March 2020. The judgment observed that if this case did not qualify as rarest of rare, no case would.

What was the outcome in the Bilkis Bano remission case?

In Bilkis Yakub Rasool v Union of India, (2024) SCC OnLine SC 26, the Supreme Court quashed the remission granted by the Gujarat government to eleven accused convicted of the 2002 gang rape and murder of Bilkis Bano's family. The Court held that the Gujarat government had no jurisdiction; the appropriate government was Maharashtra, where the trial had been held. The eleven accused were ordered to return to custody. The judgment established the strict application of the appropriate government principle in remission.

What did the Justice J S Verma Committee recommend?

The Verma Committee (2013) recommended: (i) introduction of Section 376A IPC (rape resulting in death, now Section 66 BNS); (ii) widened definition of rape to include non peno-vaginal penetration; (iii) enhanced punishments; (iv) new offences (sexual harassment, disrobing, voyeurism, stalking); (v) procedural reforms including in camera trial and prohibition on questioning the victim's character. The recommendation to criminalise marital rape was not adopted.

Rape and Murder Section 66 BNS