HAMSA v.

STATE OF KERELA

Judgement: https://www.casemine.com/judgement/in/56b4966f607dba348f0190f6

Facts: Victim on bus stand – man comes makes gestures – victim tells him to stop – man
comes and grabs hold of victim’s hand

When an incident of this type happens in such a public place as the bus stand, it does not
require much effort to know the name of the wrong doer. Accused is not a stranger in the said
bus stand. 

If Sarasamma happened to know the name of such a person before reaching the police station,
there is nothing improbable in it. 

The offence under S. 354 and 509 of the Penal Code are cognate offences. The pivot of both
the offences is infringement of the modesty of a woman. The former is a more aggravated
offence as it involves either assault or use of criminal force on the part of the accused. The
other offence is apparently lesser in degree since even uttering aoy word, or making any
sound or gesture or exhibiting any object with intent to insult the modesty of a woman, would
amount to the latter offence. A gesture will amount to an assault when it is made with the
intention or, knowledge that such gesture shall cause apprehension in the mind of another that
the maker is about to use criminal force against the other. If any such assault is made with
intent to outrage the modesty of a woman he commits the offence under S. 354. Though the
word “modesty” is not defined in the Penal Code, it has relation to the sense of propriety of
behaviour in relation to a woman against whom the offence is committed. In the Oxford
English Dictionary one of the meanings given for the word “modesty” is “womanly propriety
of behaviour”.

What the legislature had in mind when it used the word modesty in Ss. 354 and 509 of the
Penal Code was protection of an attribute which is peculiar to woman, as a virtue which
attaches to a female on account of her sex. Modesty is the attribute of female sex and she
possesses it irrespective of her age. The two offences were created not only in the interest of
the woman concerned, but in the interest of public morality as well. The question of
infringing the modesty of a woman would of course depend upon the customs and habits of
the people. Acts which are outrageous to morality would be outrageous to modesty of
women. No particular yardstick of universal application can be made for measuring the
amplitude of modesty of woman, as it may vary from country to country or society to society.

Relies in State of Punjab v. Major Singh

“The fact that a person is in love with a woman does not authorise to pull that woman by her
hand and hair in the presence of others, and such an act would amount to an outrage of her
modesty”.
 PAPPU v. STATE OF CHATTISGARH

Judgement: https://www.casemine.com/judgement/in/56b4900b607dba348fff9244

Section 354 as amended by the amendment Act of 2013 reads as under:-- 

"Assault or use of criminal force to woman with intent to outrage her modesty- whoever
assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely
that he will thereby outrage her modesty."

Similarly if we go through the provision of newly inserted section 354a of ipc wherein also
sub-section l(i) of section 354a clearly lays down that any accused person committing act of -

"physical contact and advances involvement in welcoming explicit sexual overtures, shall be
guilty of the offence of sexual harassment"

A plain reading of the commentary of the newly incorporated provisions it will reveal that the
makers of the law lay emphasize on the fact that for attracting the provision of section 354
use of either assault or criminal force is a necessary element for the offence prescribed in the
section whereas for attracting section 354A the said use of either assault or criminal force is
not a necessary element.
If the charges levelled against the appellant or the allegations narrated by the victim is taken
into consideration it is explicitly clear that the element of use of assault or criminal force is
not present but a simple act on the part of the appellant/accused by making such physical
contact and advances which are unwelcoming and explicit sexual overtures and then the man
will be found guilty of offence of only sexual harassment.
 DHRUVARAM MURLIDHAR SONAR v. STATE OF MAHRASTHRA

Judgement: https://indiankanoon.org/doc/17724919/

Section 375 defines the offence of rape and enumerates six de- scriptions of the offence. The
first clause operates where the women is in possession of her senses and, therefore, capable
of consenting but the act is done against her will and the second where it is done without her
consent; the third, fourth and fifth when there is consent but it is not such a consent as
excuses the offender, because it is obtained by putting her, or any person in whom she is
interested, in fear of death or of hurt. The expression "against her 'will'" means that the act
must have been done in spite of the opposition of the woman. An inference as to consent can
be drawn if only based on evidence or probabilities of the case. "Consent" is also stated to be
an act of rea- son coupled with deliberation. It denotes an active will in mind of a person to
permit the doing of the act complained of.

Thus, Section 90 though does not define "consent", but describes what is not "consent".
Consent may be express or implied, coerced or misguided, obtained willingly or through
deceit. If the consent is given by the complainant under misconception of fact, it is vitiated.
Con- sent for the purpose of Section 375 requires voluntary participation not only after the
exercise of intelligence based on the knowledge of the significance and moral quality of the
act, but also after having fully exercised the choice between resistance and assent. Whether
there was any consent or not is to be ascertained only on a careful study of all relevant
circumstances.

Thus, there is a clear distinction between rape and consensual sex. The court, in such cases,
must very carefully examine whether the complainant had actually wanted to marry the
victim or had mala fide motives and had made a false promise to this effect only to satisfy his
lust, as the later falls within the ambit of cheating or deception. There is also a distinction
between mere breach of a promise and not fulfilling a false promise. If the accused has not
made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts,
such an act would not amount to rape. There may be a case where the prosecutrix agrees to
have sexual intercourse on account of her love and passion for the accused and not solely on
account of the misconception created by accused, or where an accused, on account of
circumstances which he could not have foreseen or which were beyond his control, was
unable to marry her despite having every intention to do. Such cases must be treated
differently. If the complainant had any mala fide intention and if he had clandestine motives,
it is a clear case of rape. The acknowledged consensual physical relationship be- tween the
parties would not constitute an offence under Section 376 of the IPC.

Difference between false promise to have sex and rape:

There is a clear distinction between rape and consensual sex. The court, in such cases, must
very carefully examine whether the complainant had actually wanted to marry the victim or
had mala fide motives and had made a false promise to this effect only to satisfy his lust, as
the later falls within the ambit of cheating or deception. There is also a distinction between
mere breach of a promise and not fulfilling a false promise. If the accused has not made the
promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act
would not amount to rape.
There may be a case where the prosecutrix agrees to have sexual intercourse on account of
her love and passion for the accused and not solely on account of the misconception created
by accused, or where an accused, on account of circumstances which he could not have
foreseen or which were beyond his control, was unable to marry her despite having every
intention to do. Such cases must be treated differently. If the complainant had any mala fide
intention and if he had clandestine motives, it is a clear case of rape. The acknowledged
consensual physical relationship be- tween the parties would not constitute an offence under
Section 376 of the IPC.
 STATE OF UP v. NAUSHAD

Judgement: https://indiankanoon.org/doc/113414998/

2-3 questions must be answered:

1) whether consent given was consent for sexual intercourse in the eyes of the law?
In the current case, Shabana had given consent on the ground that the accused had promised
to marry her and thus this consent was obtained by misconception of fact and therefore the
case is covered under  section 376 of the IPC. 

Rebuttal argument ideas:

the High Court has held that there is no material on record to show that the accused had
committed forcible sexual intercourse and that the prosecutrix resisted it. The High Court
stated that she has admitted the presence of her grandmother and younger sister in the room
where the accused used to commit sexual intercourse but she never raised an alarm at that
time or thereafter. The High Court further stated that it was also very surprising that she
never objected to the accused sleeping in her room even though she claimed that he used to
commit forcible sexual intercourse. The High Court has held that circumstances clearly show
that she was a consenting party to the act of the accused and the allegation of forcible sexual
intercourse as alleged cannot be accepted. Further, the High Court stated that even if it is
accepted that she consented for sexual intercourse on account of misconception of fact that
the accused had promised to marry her, it will not give rise to an inference beyond reasonable
doubt that the accused had no intention to marry her at all from the inception and that the
promise he made was false to his knowledge

The High Court, citing the case of Dilip Singh v. State of Bihar, has held that it could be a
breach of promise to marry rather than false promise to marry and there is nothing on record
to indicate that she was incapable of understanding the nature and implication of the act of
the accused for which she consented to. 

Appellant arugment ideas:

The learned senior counsel for the appellant-State, Mr. Ratnakar Dash has contended that the
accused promised the prosecutrix - Shabana that he would marry her and then had sexual
intercourse with her even though he knew from the inception that he had no intention of
marrying her and that the High Court erred in holding that the victim was a consenting party
and that even if the victim consented to sexual intercourse, it was not free consent but was
given on the pretext of a false promise made by the accused to marry her. Thus, the accused
committed rape on the victim. He further contended that in such type of case, the trial court
has rightly observed that the evidence of the victim is comparatively more important and
credible. He stated that the accused clearly practised deception on the victim in order to
indulge in sexual intercourse with her and the trial court rightly convicted the accused of rape
and sentenced him to life imprisonment due to the gravity of the offence.

Therefore, 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.
In the State of U.P. v. Naushad (2013), the court held that the accused shall be convicted
under Section 375 of IPC as sexual intercourse on false promise to marry would amount to
‘without consent’ within the description ‘secondly’ of Section 375 of IPC. Thus, it is the duty
of the defendant to establish the fact that consent was obtained with the bonafide intention
and it is not within the meaning of Section 90. The Supreme Court reversed the decision of
the High Court and convicted the accused for the offence of rape under Section 376 of the
IPC.

False promise to marry – rape under section 375(2)

Here the dude basically wants sex and for that reason says that he will marry
Consent wrongfully given

Breach of promise to marry – while having sex, the person does think for a minute that yes,
he will marry her but he doesn’t end up marrying

The accused invaded her person, by indulging in sexual intercourse with her, in order to
appease his lust, all the time knowing that he would not marry her. He committed an act of
brazen fraud leading her to believe that he would marry her.
 PRADEEP KUMAR v. STATE OF BIHAR

Judgement: https://indiankanoon.org/doc/961612/

2 ingredients of section 90:

1) Part i is from the point of view of the victim.
2) Part ii is from the point of view of the accused. It envisages that the accused has
knowledge or has reason to believe that the consent was given by the victim in consequence
of fear of injury or misconception of fact; the second part lays emphasis on the knowledge or
reasonable belief of the person who obtains the tainted consent.

The requirements of both these parts should be cumulatively satisfied.

Section 90 is not an exhaustive definition for consent.

There is a difference between consent and submission. Every consent involves a submission
but the converse does not follow and a mere act of submission does not involve consent.

Consent is an act of reason accompanied by deliberation, a mere act of helpless resignation in

the face of inevitable compulsion, non- resistance and passive giving in cannot be deemed to
be consent.

Submission of the body under the fear of terror cannot be construed as a consented sexual act.
Consent for the purpose of Section 375 requires voluntary participation not only after the
exercise of intelligence based on the knowledge of the significance and moral quality of the
act but after having fully exercised the choice between resistance and assent. Whether there
was consent or not, is to be ascertained only on a careful study of all relevant circumstances.

under Section 375, consent given pursuant to a false representation that the accused intends to
marry, could be regarded as consent given under misconception of fact.

a consent obtained by coercion or fraud is only voidable by the party affected by it, the effect
of Section 90 IPC is that such consent cannot, under the criminal law, be availed of to justify
what would otherwise be an offence.

consensus of judicial opinion is in favour of the view that the consent given by the
prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise
that he would marry her on a later date, cannot be said to be given under a misconception of
fact.

there is no straitjacket formula for determining whether consent given by the prosecutrix to
sexual intercourse is voluntary, or whether it is given under a misconception of fact.

a representation deliberately made by the accused with a view to elicit the assent of the victim
without having the intention or inclination to marry her, will vitiate the consent.

If on the facts it is established that at the very inception of the making of promise, the
accused did not really entertain the intention of marrying her and the promise to marry held
out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to
the accused to exculpate him from the ambit of Section 375 clause second.
 BHUPINDER SINGH v. UT CHANDIGARH

Judgement: https://indiankanoon.org/doc/788747/

Section 375 of ipc lays down parameters for rape cases

Section 376 of ipc lays down punishment for rape
Interpretation of clause 4 of sec 375

The High Court found that Bhupinder Singh and Manjit Kaur were living as husband and
wife together for pretty long time at different places. There had been sexual intercourse and
Manjit Kaur had become pregnant. For that sexual intercourse consent was given by Manjit
Kaur treating Bhupinder Singh as her husband. Bhupinder Singh very well knew that he was
not her husband and was already married to Gurinder Kaur. Present case will squarely be
covered under the description “fourthly” of Section 375 IPC and therefore, the accused was
guilty of the offence and was liable for punishment under Section 376 IPC. Accordingly, the
conviction, as done, was upheld.

The Honourable Apex Court held that ‘Though it is urged with some amount of vehemence
that when complainant knew that he was a married man, Clause “Fourthly” of Section 375
IPC has no application, the stand is clearly without substance’

Problems with the judgement:

The judgement interprets 375(4) wrongly

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 six following
descriptions:-

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.

The Supreme Court and the High Court skipped the word “another man” from the clause and
thereby drove altogether to a different conclusion. As soon as we read the words “another
man” with reference to the whole clause we are made to believe that the word involves two
identities. The woman gives the consent because she is mistaken by the identity of the person
and considers that person to be her husband. Now, the very obvious question that comes up is
that how come this mistake of identity is caused? The answer is that there is Impersonation.

The legislature through this section intends to punish those culprits who impersonate
themselves as the husband of the woman, in order to receive her consent, and there by
commit the forbidden acts.

If we look at the facts of Bhupinder Singh case we find there was no impersonation. Since,
there was no impersonation there would be no applicability of the provision.

Bhupinder singh must be made liable under 493 (Cohabitation caused by a man deceitfully
inducing a belief of lawful marriage) and 494 (bigamy) instead.
 STATE OF UP v. CHOTEYLAL

Judgement: https://indiankanoon.org/doc/1408786/

Facts: A1 (chhoteylal), A2 and A3 kidnapped girl. A1 gagged and raped her.

Section 375 IPC defines rape as follows :

S. 375. Rape.--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 six following
descriptions :--

First.-- Against her will

Secondly.-- Without her consent.

Thirdly.-- With her consent, when her consent has been obtained by putting her or any person in
whom she is interested in fear of death or of hurt.

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 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.

Sixthly.-- 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.

Clause 6 is not attracted because girl is above 16.

But between Clause 1 and 2, an overlap between ‘against her will’ and ‘without her consent’
is observed.
Against her will: means that the intercourse was done by a man with a woman despite her
resistance and opposition.
Without her consent: act of reason accompanied by deliberation

See section 90 (consent):

Consent known to be given under fear or misconception.--A consent is not such a consent as it
intended by any section of this Code, if the consent is given by a person under fear of injury, or under
a misconception of fact, and if the person doing the act knows, or has reason to believe, that the
consent was given in consequence of such fear or misconception; or Consent of insane person.--if the
consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand
the nature and consequence of that to which he gives his consent; or Consent of child.--unless the
contrary appears from the context, if the consent is given by a person who is under twelve years of
age.
Consent supposes 3 things:
1. physical power
2. mental power
3. free and serious use of them

In an American case, it was held that if in rape, she resists to a point beyond which further
resistance would be useless or until her resistance is overcome by force or violence,
submission thereafter is not consent.

Submission of the body under the fear of terror cannot be construed as a consented sexual act.
Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of
intelligence based on the knowledge of the significance and moral quality of the act but after having
fully exercised the choice between resistance assent. Whether there was consent or not, is to be
ascertained only on a careful study of all relevant circumstances.

If it is revealed that the prosecutrix is an adult of full understanding, and as revealed by the
totality of the circumstances, she does not have a strong motive to falsely involve the person
charged then the court should ordinarily have no hesitation in accepting her evidence.

In State of Uttar Pradesh v. Chhotey lal, the court termed rape "a loss of face and value which
a woman considers most sacred or dearest to her".

Obsolete judgement

It is unwise to Imply that any unconsented intercourse with woman would result in harm to

the victims exterior or vital organs. The absence of lesions on the prosecutrix’s body does not
refute her proof. 
 STATE OF RAJASTHAN v. HEMRAJ

Judgement: https://indiankanoon.org/doc/989893/

Counsel for the respondent contended that a lady i.e. respondent No.2 cannot be held guilty even
in terms of the Explanation to Section 376 (2)(g) of the IPC.

Again court held that woman cannot be held liable for committing rape.

The Supreme Court held that a woman present for a gang rape did not share the common
intention to rape and, therefore, could not be convicted of rape. According to §§ 375 and 376
of the Penal Code, only a man can commit rape, making it impossible for a woman to be
convicted of a gang rape. This case is important because it raises the issue of how or when to
hold women responsible for sexual violence against other women.

See Priya Patel

 PRIYA PATEL v. STATE OF MP

Judgement: https://indiankanoon.org/doc/1555191/

Facts: prosecutrix was being raped by man. Man’s wife came in, prosecutrix asked for help.
Instead of saving her, the wife slapped her, closed the door and left the house. Man was
charged for rape but what about the wife?

Issue: Can a lady be prosecuted for gang rape

High Court: though a woman cannot commit rape, but if a woman facilitates the act of rape,
explanation 1 to Sec 376(2) comes into play and she can be prosecuted for gang rape.

Section 375:
Rape.—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 six following
descriptions:—
(First) — Against her will.
(Secondly) —Without her consent.
(Thirdly) — With her consent, when her consent has been obtained by putting her or any
person in whom she is interested in fear of death or of hurt.
(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 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.
(Sixthly) — 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.
What about oral sex?
(Exception)  —Sexual intercourse by a man with his own wife, the wife not being under fifteen
years of age, is not rape.]

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.

376. Punishment for rape (1) Whoever, except in the cases provided for by sub-section (1),
commits rape shall be punished with imprisonment of either description for a term which
shall not be less than seven years but which may be for life or for a term which may extend to
ten years and shall also be liable to fine unless the women raped is his own wife and is not
under twelve years of age, in which cases, he shall be punished with imprisonment of either
description for a term which may extend to two years or with fine or with both:
Provided that the court may, for adequate and special reasons to be mentioned in the
judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) Whoever,--
(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, Explanation I.--Where a woman is raped by one or more in a group of persons acting
in furtherance of their common intention, each of the persons shall be deemed to have
committed gang rape within the meaning of this sub-section.

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 has committed rape.

Problematic portion: A woman cannot be said to have an intention to commit rape.

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. The court therefore does not address the issue
of whether a woman can be charged for abetment in a rape

Analysis: The language of section 375 of IPC which expressly mentions that the act of rape
can only be performed by a ‘man’ and not by “any person”. Thus a woman cannot commit
rape. Unlike section 375, section 376(2)(g) talks about “Persons” rather than “man”, which
signify that the law-makers intended to keep Sec. 376(2)(g) gender-neutral.

1. The prosecutrix was slapped by the appellant; afterwards she shut the door and left the
place. This clearly indicates that she was supporting her husband’s act of rape and
thereby, is sufficient enough to establish criminal intention on part of Priya Patel.
2. The reasoning given by the judges is quite ‘fallacious’ in nature as it assumes that it is
conceptually inconceivable on the part of a woman to have an intention to commit
rape.
3. The Supreme Court just adhered to the bare provision of law and no referral to any
case law or any legal or juristic writing was made, which is quite atypical considering
the nature and gravity of the case.
4. According to the Positivist approach, criminal jurisprudence has evolved as per the
needs and requirements of the society. It is accepted on the part of judges that they
don’t just mechanically apply the law without undertaking proper analysis. They must
adhere of law and give the judgment accordingly. 
5. Explanation 1 attached to Section 376(2)(g) is gender-neutral is in Pari
Materia with Section 34 of IPC which means that they shall be construed together.
From cases regarding the interpretation of Section 34 IPC such as Mahbub Shah v.
King Emperor, it is well-settled that participation in the actual criminal act is not
required to suffice the purpose of Section 34.

Basically, in short, it has been established that a woman cannot commit rape by virtue of
Section 375. The explanation in 376 2g says ki ‘furtherance of common intention’ hona
chahiye. Common intention is given under section 34 ipc. But if a woman cannot have the
intention only to commit rape (sec 375) then how can she have common intention? Court
says that she can’t.