NATIONAL LAW INSTITUTE UNIVERSITY

SUBJECT – History II

A PROJECT ON -

SUBMITTED BY- SUBMITTED TO-

MEGHNA KHETRAPAL Prof. DIVYA SALIM

2013 BA.LL.B (HONS.) 111

 ACKNOWLEDGEMENT

I would like to begin with acknowledging our Criminal Law teacher, Professor Divya Salim
who gave us this opportunity to work on a project work, giving us full autonomy to choose
our topics as well as guidance where ever needed.

I would also like to thank the director of the university and the administration who have given
us all the requisite facilities like library, Wi-Fi connection, computer lab, photo stat which
make the task much easier and efficient.

Also, I would like to extend my gratefulness to my batch mates and parents who have
supported me throughout in this endeavor.

Meghna Khetrapal

2013 B.A.LL.B (Hons.) 111

 Material Facts

1) The minor granddaughter of the appellant was kidnapped from the lawful guardianship of
her maternal grandfather.

2) She was raped multiple times by 2 people.

3) Finally she was sent to her home.

 Legal Issues

1) What were the offences committed by the two accused? Was Basti Ram liable for
kidnapping when only her maternal uncle kidnapped her from the lawful guardianship
of her maternal grandfather?
2) Was the High Court correct in its decision as they did not rely on the statement of
victim?
3) Why was there remand of the decision when the court realized that the High Court
had been erroneous in its decision?
 Legal Provisions

1) 366 IPC: Kidnapping, abducting or inducing woman to compel her marriage, etc.

I) INGREDIENTS:

i) Whoever kidnaps or abducts any woman under the age of eighteen

ii) With intent that she may be compelled, or knowing it to be likely that she will be
compelled

 to marry any person against her will

 or in order that she may be forced or seduced to illicit intercourse

iii) shall be punished with imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine

iv) Whoever, by means of criminal intimidation as defined in this Code or of abuse of

authority or any other method of compulsion, induces any woman to go from any place with
intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit
intercourse with another person shall be punishable as aforesaid.

II) PUNISHMENT:

a) A term which may extend to 10 years

and

b) also fine.
III) EXPLANATION AND CASE LAWS:

Section 366A was enacted by Act XX of 1923 to give effect to certain Articles of the
International Convention for the suppression of Traffic in Women and Children signed by
various nations at Paris on May 4, 1910.

Where statement and conduct of the victim show that there was neither threat nor force used
by the accused, it cannot be said that the victim was forcibly kidnapped and kept in custody.
Accused in such a case is subject to acquittal. 1

Moreover, merely because a person did not give passive resistance it cannot mean his
helpless resignation on face of inevitable compulsion cannot be deemed as consent. It is held
that only conclusion relevant is that she was kidnapped and kept under barrier and was raped
against her will and conviction under Section 366-A and 376 of IPS is proper. 2

In view of the conduct of the accused who took a minor girl to a faraway place and sold her
for illegal and immoral purposes, the fact that the victim was below 18 years on the date of
occurrence, the sentence of seven years imprisonment along with Rs. 50,000 fine was
awarded by the High Court and was held to be quite reasonable and acceptable. 3

Where the injuries on the person of the minor girl, which were verified by medical
examination showed that she was subjected to illicit intercourse the punishment was held to
be proper. 4

Hence we see that the punishment in most cases varies upon the intensity of the crime. The
judicial interpretation has been on the same lines.

1
Ramji Prasad v State of Bihar 2013 Cr LJ 446 (Pat).
2
Dipak Kumar v The State of Bihar, 2012 CrLJ 480 (Pat).
3
Manjappa v State of Karnataka, 2010 CrLJ 4729.
4
Bhawani Giri v State of Rajasthan, 1995 Cr LJ 983 (Raj).
2) Section 376 of the IPC: Punishment for rape.

I) INGREDIENTS AND PUNISHMENT:

Since 376 talks only about the punishment of rape, the ingredients of rape according to
Section 375 are sexual intercourse with a woman against her will, without her consent, with
her consent when such consent has been obtained by putting her or any person in whom she
is interested in fear of death or grievous hurt 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, with her consent, when, at the time
of giving such consent, by reason of unsoundness of mind or intoxication or the
administration by him personally or through another of any stupefying or unwholesome
substance, she is unable to understand the nature and consequences of that to which she gives
consent and with or without her consent, when she is under sixteen 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 fifteen
years of age, is not rape.

(2) Whoever,—
(a) being a police officer commits rape—
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which
he is appointed; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or
b) being a public servant, takes advantage of his official position and commits rape on a
woman in his custody as such public servant or in the custody of a public servant subordinate
to him; or
c) being on the management or on the staff of a jail, remand home or other place of custody
established by or under any law for the time being in force or of a woman’s or children’s
institution takes advantage of his official position and commits rape on any inmate of such
jail, remand home, place or institution; or
d) being on the management or on the staff of a hospital, takes advantage of his official
position and commits rape on a woman in that hospital; or
e) commits rape on a woman knowing her to be pregnant; or
f) commits rape on a woman when she is under twelve years of age; or
g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall
not be less than ten years but which may be for life and shall also be liable to fine: Provided
that the Court may, for adequate and special reasons to be mentioned in the judgment, impose
a sentence of imprisonment of either description for a term of less than ten years.

II) CASE LAWS AND EXPLANATION:

5
In Re Director General of Prosecution it was held that the consent given by a woman of
Scheduled Castes or Scheduled Tribe community for sexual intercourse to one who was in a
position to dominate her was not a defence under S. 375.

When the accused tried to subject the prosecutrix to forcible sex, she resisted. Her cries
attracted people and the accused ran away. From the statements of the witnesses it appeared
that the physical and psychological potency which is needed for rape, was not there in the
accused. There was no evidence to show that he was not determined to have sex despite
resistance. The court said that a higher degree of determination is required to commit a sexual
offence. The court convicted him under S. 354 for outraging the modesty of a woman. 6

Where a woman suffering from “somnambulism” and epilepsy walked out of her house, in
sleep at 2:00 a.m. and reached a particular spot from where the accused who were five in
number led her to a lodge and subjected her to gang rape, and all other symptoms were found
to be there, the court said that no circumspection should be should be shown to such reasons.
7

Where a woman was willing to allow sexual intercourse with her for a price, the fact that the
price offered was found to be fictitious would not vitiate the consent. 8

5
1993 CrLJ 760 (Ker).
6
Uday v State of Karnataka, AIR 2003 SC 1639.
7
Kanhimon v State of Kerala, 1988 CrLJ 493 (Ker).
8
Saleha Khatoon v State of Bihar, 1989 CrLJ 202 (Pat).
Where a woman consented to having sex with her boyfriend the fact that she had sex
fraudulent sex with his friend was said to have been ex without her consent as she had not
consented to him. 9

In case of cases of void marriage, where the accused knew he had another wife, rape was said
to have been committed by him. 10

3) Section 363 of the IPC: PUNISHMENT FOR KIDNAPPING

9
R v Elbekkay, (1995) Crim LR 163.
10
Bhupinder Singh v UT of Chandigarh, 2008 Cr LJ 3546.
I) INGREDIENTS:

a) whoever

b) kidnaps any person

c) from India or from the lawful guardianship

II) PUNISHMENT:

a) imprisonment of either description for a term which may extend to seven years

and

b) shall also be liable for fine.

III) CASE LAWS AND EXPLANATION:

This section must be read with Section 361. The offence of kidnapping from the lawful
guardianship penalised by this section is the offence which is defined by Section 361. The
person against whom the offence is committed must be under the age of sixteen if a male
and under the age of eighteen if a female. 11

Where a girl of 23 years of age left her parents of her own will and married a man Section
363 or 366 was not attracted. 12

Where in a case of kidnapping the girl deposed that she had gone with the accused on her
own volition, the conviction under Section 363 was set aside. 13

Accused took away the daughter of informant on allurement of solemnizing marriage with
her and committed rape on her. The defence version that the viction girl eloped with her and
committed rape on her. The defence version that viction girl eloped with appellant cannot be
held accepted. Conviction was held proper. 14

11
Anandham v State of T.N., (1995) 1 Cr LJ 632.
12
Oroos Fatima v Senior Suptd. Of Police, Aligarh, 1993 CrLJ 1(All).
13
Bhajan Lal v State of UP., 1996 CrLJ 460 (All).
14
Maheshwar Singh Munda v State of Jharkhand, 2010 CrLJ 4011 (Jhar).
Where accused had come to the house of the victim and misrepresented to his mother that he
was working in factory of her husband and took away her child on false pretext it was held
that charge of kidnapping the child from lawful guardianship is proved. Accused convicted
under Section 363. 15

Where accused kidnapped the victim girl and committed rape on her and the statement of
witnesses including that of the victim girl and committed rape on her and the statement of
witnesses including that of the victim are natural and reliable, conviction of appellant under
Section 363, 366, 376 of the IPC was considered reasonable.16

In a case where prosecutrix, aged about 16 years, a student of 10 th class was alleged forcibly
dragged by appellants towards village but on raising hue amd cry she was rescued by
witnesses, Court held that the offence under Sections 363, 366 read with sections 34 of IPC
stand proved beyond doubt. 17

A girl of barely two years was kidnapped, raped and murdered by the accused. Conviction of
the accused purely on the basis of circumstantial evidence under Sections 363 and 376 was
upheld but the death sentence awarded under Section 302 was not upheld. Punishment was
pronounced under Section 304, Part II as intention to kill the victim could not be attributed to
the accused, however he had knowledge that his act was likely to cause death. 18

3) Section 342 of the IPC: WRONGFUL CONFINEMENT

15
Mohd Murtuza Mohd. Mosin Shaikh v State of Maharashtra, 2011 CrLJ 4062 (Bom).
16
Padam Singh Chainsar v State of Uttaranchal, 2011 CrLJ 2972 (Utt).
17
Chander Singh v State of Himachal Pradesh, 2010 CrLJ 4031 (HP).
18
State v Panna Lal, 1993 CrLJ 852 (Del).
I) INGREDIENTS:

a) Whoever, i.e. any person

b) wrongfully confines a person (i.e. wrongfully restrains within prescribed limits)

II) PUNISHMENT:

a) would be punished with imprisonment with a term which may extend to one year

b) or fine which may extend to Rs 1000

c) or both

III) CASE LAWS AND EXPLANATION

Section 342, IPC is not confined to offences against public servants but is a general section
and makes a person who wrongfully restrains another, guilty of the offence under that
Section. A wrongful confinement is a wrongful restraint in such a manner as to prevent that
person from proceeding beyond a certain circumscribed limits. This offence has nothing to do
19
with the investigation or search. The essential ingredients of the offence “wrongful
confinement” are that the accused should have wrongfully confined the complainant and such
restrain was to prevent the complainant from proceeding beyond certain circumscribed limits
beyond which he/she has a right to proceed. The factual scenario clearly establishes
commission by the appellant as well of the offence punishable under section 342 IPC. 20

Confinement need not necessarily be a confinement where the person is physically held
within a certain circumscribed limit.

Arguments in favour of Appellant

19
Shyam Lal Sharma v State of Madhya Pradesh, AIR 1972 SC 886 : (1972) 1 SCC 764.
20
Raju Pandurang Mahale v State of Maharashtra, AIR 2004 SC 1677.
1) She was taken away from the lawful guardianship of her maternal grandfather by her
maternal uncle.
2) She was subject to gang rape by the accused and his friend, Basti Ram multiple times
3) She was kept against her will near the veterinary hospital, where the accused worked
and her desire to go home was ignored. Hence she was wrongfully confined against
her will.
4) She was under 18 years of age.
5) Her statements were recorded but were ignored by the High Court.

Arguments in favour of Respondent

 1) She was otherwise a girl of bad character.
2) They had falsely been implicated at the instance of the investigating agency.

Final Outcome

TRIAL COURT:
 1) The maternal uncle who took the girl out of the custody of the lawful guardianship of
her maternal grandfather was charged for kidnapping her. The other accused was not
as he did not take her out of lawful guardianship.
2) They both were charged of gang rape on the girl.
3) They both were charged of Rigorous imprisonment of 10 years along with a fine of
Rs. 2000, the non payment of which would lead to further imprisonment of 1 year.
4) The punishment of all the offences was to run concurrently.

HIGH COURT:

1) Taking the totality of facts and the circumstances of the case into consideration the
above evidence cast heavy doubt on the prosecution version and did not inspire any
confidence to the respected single bench Court.
2) The appeal was allowed.

SUPREME COURT:

1) During the pendency of the appeal, one of the accused’s passed away (Basti Ram).
Only her maternal uncle who was accused of kidnapping her along with gang raping
her remained alive.
2) The decision of the High Court was completely overruled. The Supreme Court said
that evidence related to the victim’s statement was ignored. The method in which the
High Court had dealt with the case was unsatisfactory.
3) The matter was remanded for reconsideration after taking into account the necessary
evidence on record including the statement and testimony of the victim on the subject.
4) The High Court was requested to accord high priority to the disposal of the case since
it was a rape case of 1989-1990.

Critical Comments

Rape laws in India need to be made less technical. The cross examination that she goes
through under the fear of being ostracized by the society should be taken into consideration.
The minimum punishment level should be increased to ten years and there should be no
provision of making the laws more lenient. There should be time bound trials and money
must be paid to her to rehabilitate herself.

Section 114- A of the Evidence Act implicitly assumes that the moral character of a woman is
not a relevant consideration yet the legislature has not rescinded Section 155(4) of the
Evidence Act. This clause should be deleted without any delay. 21

21
SHOBHA SAXENA, CRIMES AGAINST WOMEN AND PROTECTIVE LAWS 390-391 (2007).
Bibliography