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

Narender Kumar Vs State (NCT of Delhi)

Hon'ble Supreme Court of India observed on 25.05.12 as "even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused."

Yedla Srinivasa Rao Vs State of A P

IPC 376- rape- consent of women- on the promise of marriage no consent- the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuaded the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent- If it is fully grown up girl who gave the consent then it is different case but a girl whose age is very tender and she is giving a consent after persuasion of three months on the promise that the accused will marry her which he never intended to fulfil right from the beginning which is apparent from the conduct of the accused- If the attending circumstances lead to the conclusion that it was not only the accused but prosecutor was also equally keen, then in that case the offence is condoned. But in case a poor girl placed in a peculiar circumstance where her father has died and she does not understand what the consequences may result for indulging into such acts and when the accused promised to marry but he never intended to marry right from the beginning then the consent of the girl is of no consequence and falls in the second category as enumerated in Section 375 -"without her consent". A consent obtained by misconception while playing a fraud is not a consent.

Uday Vs State of Karnataka 2003 CriLJ 1539

IPC -376- rape- consent - for determining whether consent given by the prosecutor was voluntary or under a misconception of fact, no straitjacket formula can be laid down but following factors stand out;
(i) where a girl was of 19 years of age and had sufficient intelligence to understand the significance and moral quality of the act she was consenting to;
(ii) she was conscious of the fact that her marriage was difficult on account of caste considerations;
(iii) it was difficult to impute to the appellant knowledge the prosecutor had consented in consequence of a misconception of fact arising from his promise, and
(iv) there was no evidence to prove conclusively that the appellant never intended to marry the prosecutor.