Tekan Alias Tekram vs State Of M.P (Now Chhattisgarh) on 11 February, 2016

Indian Penal Code, 1860- sec376 rape- compensation - Hon'ble Supreme Court of India observed as " we dismiss the appeal having no merit and issue the following directions:-

1) All the States and Union Territories shall make all endeavour to formulate a uniform scheme for providing victim compensation in respect of rape/sexual exploitation with the physically handicapped women as required under the law taking into consideration the scheme framed by the State of Goa for rape victim compensation;"

http://indiankanoon.org/doc/62755573/

Can a lady be prosecuted for gang rape?

Hon'ble Supreme Court of India observed in Priya Patel vs State Of M.P. & And on 12 July, 2006 as  “A bare reading of Section 375 makes the position clear that rape can be committed only by a man. The section itself provides as to when a man can be said to have committed rape. Section 376(2) makes certain categories of serious cases of rape as enumerated therein attract more severe punishment. One of them relates to "gang rape". The language of sub-section(2)(g) provides that "whoever commits 'gang rape" shall be punished etc.

The Explanation only clarifies that when a woman is raped by one or more in a group of persons acting in furtherance of their common intention each such person shall be deemed to have committed gang rape within this sub-section (2). That cannot make a woman guilty of committing rape. This is conceptually inconceivable. The Explanation only indicates that when one or more persons act in furtherance of their common intention to rape a woman, each person of the group shall be deemed to have committed gang rape.

By operation of the deeming provision, a person who has not actually committed rape is deemed to have committed rape even if only one of the group in furtherance of the common intention”

“A woman cannot be said to have an intention to commit rape. Therefore, the counsel for the appellant is right in her submission that the appellant cannot be prosecuted for alleged commission of the offence punishable under Section 376(2)(g).

The residual question is whether she can be charged for abetment. This is an aspect which has not been dealt with by the Trial Court or the High Court. If in law, it is permissible and the facts warrant such a course to be adopted, it is for the concerned court to act in accordance with law. We express no opinion in that regard.”

Thus a lady cannot be prosecuted for rape even with the help of sec 34 (common intention) but whether she can be prosecuted for abetment left undecided.

Read Full Judgement Here

Sec 174A IPC - no complaint is necessary

Maneesh Goomer Vs State Hon'ble High Court of Delhi on 04.01.12 observed that 174A of IPC is a cognizable offence and other offence of this line are non-cognizable thus it can not be said that a complaint by court is necessary for all section including sec 174A IPC. Under this section police may registered FIR and file charge sheet without formal complaint by court. Main offence of sec 138 IPC is already compounded but same is not ground to quash present case u/s 174A and this is a distinctive offence. 

Unlawful Assembly

Baladin and others Vs State of Uttar Pradesh AIR 1956 SC 181 “It is well settled that mere presence in an assembly does not make such a person a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under section 142, Indian Penal Code”

Common object” may also be developed at the time of incident

 Ramachandran and others v. State (2011) 9 SCC 257

 “27. Thus, this Court has been very cautious in a catena of judgments that where general allegations are made against a large number of persons the court would categorically scrutinise the evidence and hesitate to convict the large number of persons if the evidence available on record is vague. It is obligatory on the part of the court to examine that if the offence committed is not in direct prosecution of the common object, it yet may fall under the second part of Section 149 IPC, if the offence was such as the members knew was likely to be committed. Further inference has to be drawn as to what was the number of persons; how many of them were merely passive witnesses; what were their arms and weapons. The number and nature of injuries is also relevant to be considered. “Common object” may also be developed at the time of incident”

Court on its own motion (LAJJA DEVI) through: NEMO Vs State

Hon'ble High Court of delhi observed as on 27.07.12

1) Whether a marriage contracted by a boy with a female of less than 18 years and a male of less than 21 year could
be said to be valid marriage and the custody of the said girl be given to the husband (if he is not in custody)?
2) Whether a minor can be said to have reached the age of discretion and thereby walk away from the lawful guardianship of her parents and refuse to go in their
custody?
3) If yes, can she be kept in the protective custody of the State?
4) Whether the FIR under Section 363 IPC or even 376 IPC can be quashed on the basis of the statement of such a minor that she has contracted the marriage of her own?
5) Whether there may be other presumptions also which may arise?”

In such circumstances, allowing the husband to consummate a marriage may
not be appropriate more so when the purpose and rationale behind the PCM
Act, 2006 is that there should be a marriage of a child at a tender age as he
or she is not psychologically or medically fit to get married. There is another important aspect which is to be borne in mind. Such a marriage, after all, is voidable and the girl child still has right to approach the Court seeking to exercise her option to get the marriage declared as void till she attains the age of 20 years.
Answers to question-

1- voidable and PCM override HMA
2&3- yes but not for long period and free if above 20 - and it's on case to case basis
4&5- no

Rajendra Shrivastava Vs State of Maharashtra, (2010) 112 BomLR 762

Whether sc & st act may be add with sec 498a- Hon'ble High Court of Bombay observed as
“When a woman born in a scheduled caste or a scheduled tribe marries to a person belonging to a forward caste, her caste by birth does not change by virtue of the marriage. A person born as a member of a scheduled caste or a scheduled tribe has to suffer from disadvantages, disabilities and indignities only by virtue of belonging to the particular caste which he or she acquires involuntarily on birth. The suffering of such a person by virtue of caste is not wiped out by a marriage with the person belonging to a forward caste. The label attached to a person born into a scheduled caste or a scheduled tribe continues notwithstanding the marriage. No material has been placed before us by the applicant so as to point out that the caste of a person can be changed either by custom, usage, religious sanction or provision of law.”

Preeti Gupta vs. State of Jharkhand

Supreme Court observed that -
serious relook of the entire provision is warranted by the Legislature. It is a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over-implication is also reflected in a very large number of cases

Cherubin Gregory Vs The State Of Bihar AIR 1964 SC 205

Hon'ble Supreme Court of India observed as " The appellant was charged with an offence under S. 304A of the Indian Penal Code for causing the death of one Mst. Madilen by contact with an electrically charged naked copper wire which he had fixed up at the back of his house with a view to prevent the entry of intruders into his latrine.....
an electric light was burning some distance away. But it is manifest that neither of these could constitute warning as the conditions of the wire being charged with electric current could not obviously be de- tected merely by the place being properly lit.....
The right of private defence of property which is set out in s. 97 of the Indian Penal Code is, as that section itself provides, subject to the provisions of s. 99 of the Code. It is obvious that the type of injury caused by the trap laid by the accused cannot be brought within the scope of s. 99, nor of course of s. 103 of the Code....
The contention was that the deceased was a trespasser and that there was no duty owed by an occupier like the accused towards the trespasser and therefore the latter would have had no cause of action for damages for the injury inflicted and that if the act of the accused was not a tort, it could not also be a crime. There is no substance in this line of argument. In the first place, where we have a Code like the Indian Penal Code which defines with particularity the ingredients of a crime and the defences open to an accused charged with any of the offences there set out we consider that it would not be proper or justifiable to permit the invocation of some Common Law principle outside that Code for the purpose of treating what on the words of the statute is a crime into a permissible or other than unlawful act. But that apart, learned Counsel is also not right in his submission that the act of the accused as a result of which the deceased suffered injuries resulting in her death was not an actionable wrong. A trespasser is not an outlaw, a Caput lupinem. The mere fact that the person entering a land is a trespasser does not entitle the owner or occupier to inflict on him personal in- jury by direct violence and the same principle would 203 govern the infliction of injury by indirectly doing some- thing on the land the effect of which he must know was likely to cause serious injury to the trespasser."

Ghapoo Yadav & Ors Vs State of MP (2003) 3 SCC 528

Hon'ble Supreme Court of India observed as "The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception
There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'."

Gyarsibai W/O Jagannath Vs The State 1953 CriLJ 588

In this case a woman have some fighting with sister in law- husband also take side of sister in law- she said that she will jump in the well with children - children died -she was convicted for offence u/s 302& 309 IPC - as per court case is different from mst Dhirajia case as here there is no question of any panic or fright of the appellant as it was in that case
http://www.indiankanoon.org/doc/109424/

Emperor Vs Mt Dhirajia AIR 1940 All 486

Woman of 20 years age tried for sec 302 and 309- want to go parental home - husband gave beating to her- she left matrimonial house in the night- her Mt. Dhirajia turned round in a panic, ran a little distance with the baby girl in her arms and then either jumped or fell into an open well which was at some little distance from the path. It is important to observe that obviously she did this in panic because we have the clearest possible evidence that she looked behind her and was evidently running away from her husband. The result was, to put it briefly, that the little child died while the woman was eventually rescued and suffered little or no injury- -Some degree of knowledge must, we think, be attributed to every sane person. Obviously, the degree of knowledge which any particular person can be assumed to possess must vary. For instance, we cannot attribute the same degree of knowledge to an uneducated as to an educated person. But we think that to some extent knowledge must be attributed to everyone who is sane. -
however primitive a man or woman may be, and however frightened he or she may be, knowledge of the likely consequence of so imminently dangerous an act must be supposed to have remained with him or her-
hat is the fourth case in which culpable homicide is murder. We have already found that Mt. Dhirajia must be taken to have known that what she did must in all probability cause the death of her baby. But this is qualified by the further requirement that "such act" must be "without any excuse for incurring the risk of causing death...." The construction of this particular passage of Section 300 is well settled. It is well settled that it is not murder merely to cause death by doing an act with the knowledge that it is so imminently dangerous that it must in all probability cause death. In order that an act done with such knowledge should constitute murder it is necessary that it should be committed without any excuse for incurring the risk of causing the death or bodily injury. An act done with the knowledge of its consequences is not prima facie murder. It becomes murder only if it can be positively affirmed that there was no excuse. The requirements of the section are not satisfied by the act of homicide being one of extreme recklessness. It must in addition be wholly inexcusable. When a risk is incurred-even a risk of the gravest possible character which must normally result in death-the taking of that risk is not murder unless it was inexcusable to take it. That, as we understand it, in terms of this case, is the meaning of this passage of Section 300, I.P.C. Now looking at the facts of this case which we need not repeat again, we think that it is not possible to say that Mt. Dhirajia in jumping into this well did so without excuse--
Difference from Supadi Lukadu v. Emperor (25) 12 AIR 1925 Bom 310 is that in that case child was on back of lady and court reached to the conclusion that she was not aware of child-
She did so in an effort to escape from her husband. The taking of her own life was not, we think, for one moment present to her mind. For that reason we think that Mt. Dhirajia was rightly acquitted under Section 309, I.P.C--
Punish only for 6 month u/s 304 IPC

Kapur Singh Vs State Of Pepsu AIR 1956 SC 654

About a year before the date of the occurrence, Bachan Singh son of the deceased caused a severe injury on the leg of Pritam Singh, son of the appellant resulting in the amputation of his leg. The appellant harboured a grudge against the father and the son since that time and he was trying to take revenge...
Chand Singh held the deceased by the head and the appellant inflicted as many as 18 injuries on the arms and legs of the deceased with a gandasa. It is significant that out of all the injuries which were thus inflicted none was inflicted on a vital part of the body....
The fact that no injury was inflicted on any vital part of the body of the deceased goes to show in the circumstances of this case that the intention of the appellant was not to kill the deceased outright. He inflicted the injuries not with the intention of murdering the deceased, but caused such bodily injuries as, he must have known, would likely cause death having regard to the number and nature of the injuries...
Conviction altered to 304(1) from 302 IPC

Ramesh Kumar Vs State of Chhattisgarh (2001) 9 SCC 618

IPC- sec 306 - abetment to suicide - husband said "you are free to do whatever you wish and go wherever you like" - Hon’ble Supreme Court of India observed as under "Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect. or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. the present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.."

State of UP Vs Babul Nath (1994) 6 SCC 29 Supreme Court

Hon’ble Supreme Court of India observed as under

"To constitute the offence of rape neither Section 375 of IPC nor the Explanation attached thereto require that there should necessarily be complete penetration of the penis into the private part of the victim/prosecutrix. In other words to constitute the offence of rape it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen. Even partial or slightest penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough for the purpose of Sections 375 and 376 of IPC. That being so it is quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stains. But in the present case before us as noticed above there is more than enough evidence positively showing that there was sexual activity on the victim and she was subjected to sexual assault without which she would not have sustained injuries of the nature found on her private part by the doctor who examined her."

T N Lakshmaiah Vs State of Karnataka (2002) 1 SCC 219

Hon’ble Supreme Court of India observed as under "Under the Evidence Act, the onus of proving any of the exceptions mentioned in the Chapter lies on the accused though the requisite standard of proof is not the same as expected from the prosecution. It is sufficient if an accused is able to bring his case within the ambit of any of the general exceptions by the standard of preponderance of probabilities, as a result of which he may succeed not because that he proves his case to the hilt but because the version given by him casts a doubt on the prosecution case.

In State of M P Vs Ahmadull AIR 1961 SC 998, this Court held that the burden of proof that the mental condition of the accused was, at the crucial point of time, such as is described by the section, lies on the accused who claims the benefit of this exemption vide Section 105 of the Evidence Act [Illustration (a)]. The settled position of law is that every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved. Mere ipse dixit of the accused is not enough for availing of the benefit of the exceptions under Chapter IV.
In a case where the exception under Section 84 of the Indian Penal Code is claimed, the court has to consider whether, at the time of commission of the offence, the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law. The entire conduct of the accused, from the time of the commission of the offence up to the time the sessions proceedings commenced, is relevant for the purpose of ascertaining as to whether plea raised was genuine, bona fide or an afterthought."

Hira Lal Hari Lal Bhagwati Vs CBI (2003) 5 SCC 257

Hon'ble Supreme Court of India observed, 'for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From his failure to keep promise subsequently, such a culpable intention right at the beginning cannot be presumed.'

Vir Prakash Sharma Vs Anil Kumar Agarwal (2007) 7 SCC 373

Hon'ble Supreme Court observed,“The ingredients of Section 420 of the Penal Code are as follows: (i) Deception of any persons;
(ii) Fraudulently or dishonestly inducing any person to deliver any property; or
(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. No act of inducement on the part of the appellant has been alleged by the respondent. No allegation has been made that he had an intention to cheat the respondent from the very inception.”

S V L Murthy etc Vs CBI (2009) 6 SCC 77

Hon'ble Supreme Court observed, “An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied: ( i) deception of a person either by making a false or misleading representation or by other action or omission; (ii) fraudulently or dishonestly inducing any person to deliver any property; or ( iii) to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Penal Code can be said to have been made out.”

R.V. Bhasin Vs State of Maharashtra Bombay HC on 06.01.10

“Supreme Court dated 30/8/1999 in Shiv Kumar v. Hukum Chand & Anr. In that case, the appellant/complainant wanted the counsel appointed by him to conduct the prosecution in the Sessions Court. The public prosecutor had consented to it. The High Court rejected the prayer. After considering the relevant provisions of the Code, particularly Section 301 thereof, the Supreme Court endorsed the High Court's view after observing that the prosecution in a Sessions Case cannot be conducted by anyone other than the public prosecutor. The Supreme Court observed that if a private counsel is allowed a free hand to conduct a prosecution he would focus on bringing the case to conviction even if it is not a fit case where the accused could be convicted………The Supreme Court (in Ramji Lal Modi vs State of U.P AIR 1957 SC 620)observed that Section 295-A does not penalize any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class”
Following are the principles.banning abook u/s95 CrPC “a) The Notification must state the grounds of the Government’s opinion. (Harnam, Narayan Das, Lalai Singh Yadav)
b) A formal authoritative setting forth of the grounds is statutorily mandatory. Appendix cannot make up for grounds of opinion. (Lalai Singh Yadav AIR 1977 SC 202)
c) Mere repetition of an opinion or reproduction of the Section will not answer the requirement of a valid notification. (Narayan Das)
d) Grounds must not be stated at learned length. In certain cases a laconic statement may be enough while in others more detailed reasons may be required. Grounds may be brief but cannot be blank. (Lalai Singh Yadav)
e) Grounds of opinion must mean conclusion of facts on which the opinion is based. Grounds must necessarily be the import or the effect or the tendency of the matters contained in the offending publication either as a whole or in portions of it, as illustrated by passages which Government may choose, (Narayan Das’s case where the Supreme Court referred to the Calcutta High Court’s judgment in Arun Ranjan Ghose with approval).
f) The High Court must set aside an order of forfeiture if there are no grounds of opinion because if there are no grounds of opinion, it cannot be satisfied that the grounds given by the Government justified the order. If in such case, the High Court upholds the order, it would mean that the High Court itself made the order which the High Court cannot do. (Harnam)
g) The High Court must set aside the order of forfeiture if it is not satisfied that the grounds on which the Government formed it’s opinion justify that opinion. (Harnam)
h) The validity of the order of forfeiture would depend on the merits of the grounds. It is not the duty of the High Court to find out for itself whether the book contained any such matter whatsoever. The High Court cannot make a roving enquiry beyond the grounds set forth in the order. (Harnam)
i) The State cannot extract stray sentences of portions of the book and come to a finding that the said book as a whole ought to be forfeited. (Baragur (2007) 5 SCC 11)
j) The matter charged as being within the mischief of the relevant sections of the IPC must be read as a whole. One cannot rely on stray, isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning. (Gopal Godse, Special Bench, Bombay High Court.)
k) Section 295-A of the IPC does not penalize any and every act of insult to or attempt to insult the religion or religious beliefs of a class of citizens. There must be a malicious or deliberate intention to outrage the religious feelings of a class of citizens. (Ramji Modi, Balwant Singh, Manzar Khan, Bhagwati Charan Sharma Nagpur High Court, Gopal Godse Special Bench, Bombay High Court.)
l) Intention of the author has to be gathered from the language, contents and import of the offending material. (Baragur, Gopal Godse Special Bench, Bombay High Court).
m) If the purpose of writing the book was a historical research based on a number of reference books and other material, it would be difficult for the State to contend that simple narration of history would promote violence, enmity or hatred. (Varsha Publications, Special Bench, Bombay High Court.)
n) If the allegations made in the offending article is based on folklore, tradition or history something in extenuation could perhaps be said for the author. (Baragur)
o) If the writing is calculated to promote feelings of enmity or hatred, it is no defence to a charge under Section 153-A of the IPC that the writing contains a truthful account of past events or is otherwise supported by good authority. Adherence to the strict path of history is not by itself a complete defence to a charge under Section 153-A. (Gopal Godse, Special Bench, Bombay High Court).
p) Section 95(1) of the Code requires that the ingredients of the offences should appear to the Government to be present. Section 95 does not require that it should be proved to the satisfaction of the Government that all requirements of punishing sections including mens rea were fully established. (Baragur, Nandkishore, Special Bench of Patna High Court).
q) The onus to dislodge the prima facie opinion of the Government that the offending publication comes within the relevant offence including its requirement of intent is on the applicant and such intention has to be gathered from the language, contents and import thereof. (Nandkishore, Special Bench of Patna High Court, approved in Baragur.)
r) It is not necessary to prove that as a result of the objectionable matter enmity or hatred was in fact caused between the different classes. It is enough to show that the language of the writing is of a nature calculated to promote feelings of enmity or hatred. (Gopal Godse, Special Bench, Bombay High Court.).
s) For judging what are the natural or probable consequences of the writing, it is permissible to take into consideration the class of readers for whom the book is primarily meant as also the state of feelings between the different classes or communities at the relevant time. (Gopal Godse, Special Bench, Bombay High Court.)
t) Whether the objectionable matter is meant for limited circulation, whether it is to cater to ignorant, illiterate inflammable mob or educated people would be a relevant consideration. (Bhagwati Charan Sharma – Nagpur High Court).
u) The effect of the words must be judged from the standards of reasonable strongminded, firm and courageous men and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. (Ramesh v. Union of India, AIR 88 SC 775, Manzar Khan, Bhagwati Charan Sharma – Nagpur High Court.)”