II YEAR Semester - III (2021-2026)

2nd -Internal Assessment

Law of Crime-I: Hypothetical/Problem-Based Question

“Offence of Rape and Joint Criminal Liability”

NAME: Khushi Chaudhari DIVISION: C

PRN: 21010126240 COURSE: B.B.A. LL.B.

(H)

BATCH: 2021-2026

WORD COUNT: 1991

SUBMITTED TO: Prof. Jivantika Gulati

 DATE OF SUBMISSION: 24th November 2022.

Question: 1

Identify the provisions applied in the above-given problem

1. Section 401: Defines the word Offence, which includes everything punishable under
IPC.
2. Section 902: States the condition in which consent will be considered as not valid
consent.
3. Section 3753: Defines the offense of Rape
4. Section 3764: Lays down the punishment for Rape.
5. Section 4155: Defines the word cheating. Concerning the context breach of promise to
marry will attract the provision.
6. Section 114-A6: Strictly mentions that if the accused states before a court that her
consent was not present, then it will be presumed true.
7. Section 137: Defines the word consent: When two or more people agree on the same
thing in the same sense.

Application of Laws and Innovative Solutions

 Arguments

Amita: As per the facts, Amita and Ajay developed an understanding that once Ajay gets a
job, they will get married. Based on this understanding, they made serious decisions.
However, Ajay fell in love, started avoiding Amita, and finally refused to marry her. Amita
filed a criminal complaint alleging that she had been raped by Ajay many times as she was

1
The Indian Penal Code, 1860 § 40, No. 45 Of 1860, Acts of Parliament, 1860 (India).
2
The Indian Penal Code, 1860 § 90, No. 45 Of 1860, Acts of Parliament, 1860 (India).
3
The Indian Penal Code, 1860 § 375, No. 45 Of 1860, Acts of Parliament, 1860 (India).
4
The Indian Penal Code, 1860 § 376, No. 45 Of 1860, Acts of Parliament, 1860 (India).
5
The Indian Penal Code, 1860 § 415, No. 45 Of 1860, Acts of Parliament, 1860 (India).
6
The Indian Evidence Act, 1872 § 114A, No. 1 Of 1872, Acts of Parliament, 1872 (India).
7
The Indian Contract Act, 1872 § 13, No. 9 of 1872, Acts of Parliament, 1872 (India).
under the presumption that Ajay will marry her. And her consent was taken under the
misconception of fact as mentioned under section 908 that he will marry her at a later point of
mind but hiding the real intention. Was the deciding factor which makes him liable for the
offense of rape under section 3759 and punishable under section 37610. According to section
114A11 statement of a witness is only enough to show that her consent was present in the case
or not. Relying on the Indian Evidence act, another party must prove that sexual intercourse
was lawful. Until then Ajay is liable for the offense.

Ajay: As per the facts, when they developed an understanding between them that they will
get married once Ajay gets a job in the city. It does not show that Ajay ever promised Amita
that at a later point in time he will formally marry her. So, she gave her consent with full
knowledge, and there is no misconception. Which is laid down under pleads that sexual
intercourse between them was consensual. At the time of doing the act, nobody could foresee
the change in circumstances of Ajay falling in love. So, when the consummation occurred
between the party, they gave consent as per section 13 12. Hence rape charges will not be
applicable.

 Issues

1. Is Ajay liable to be punished under section 376 of the Indian Penal Code?
2. Whether it was foreseen that he will fell in love and his feeling will change.

 Reasoning

If we interpret section 90, it can be clearly understood that a false promise of marriage for
obtaining consent for sexual intercourse is considered not to be a valid form of consent and a
person can be held liable for the offense of rape.

8
The Indian Penal Code, 1860 § 90, supra note, 2,2.
9
The Indian Penal Code, 1860 § 375, supra note, 3,2.
10
The Indian Penal Code, 1860 § 376, supra note, 4,2.
11
The Indian Evidence Act, 1872 § 114A, super note, 6,2.
12
The Indian Contract Act, 1872 § 13, super note, 7,2.
According to Pramod Suryabhan Pawar v State of Maharashtra13, the court held that in every
case if a man fails to marry even when he had promised to marry her. He would be liable for
rape if he did not intend to fulfill the obligation when he was making the promise.

Understanding the difference between consensual sex and rape. It is essential to consider that
it was not obtained by fraud or misconception at the time of giving consent. If section 90 14 is
applicable then accuse will be liable.

When consent was given for a sexual relationship with whom the girl is in love on the bases
of the promise of marriage it cannot come under section 90 since it is difficult to determine
that when she gives consent, she was aware of the above nature of the sequence at the time of
giving consent was on the bases of mutual consent or the bases the promise made by the boy.
If the case is so, the promise given will not come under section 90, and the accused will not
be liable under section 375 according to Uday v. State of Karnataka (2003)15.

We must understand the difference between a false promise and a breach of promise. False
promises of marriage will take as committing rape if from the beginning the man had no
intention of keeping his promise according to Deepak Gulati v. State of Haryana16. But a
breach of promise can happen due to love, family matter, etc. which doesn’t mean that
promise is false from the beginning. So, the determining factor is the accused intention.

When sexual intercourse occurs based on false promises made by the accused to marry her
later is not covered in section 37517, consent amounting to no consent or consent on the false
promise of marriage does not come under section 375, and one can take defense under it as
per G. Achyut Kumar v. State of Odisha18.

But at the time of consummation Ajay never took the consent of Amita under section 90 and
the arguments made by Ajay will sustain since the change in intention came later on after the
act took place which does not directly affect the intention at the time of consummation.

13
Pramod Suryabhan Pawar v State of Maharashtra, (2019) 9 SCC 608.
14
The Indian Penal Code, 1860 § 90, supra note, 2,2.
15
Uday v. State of Karnataka (2003), Criminal Case Number: 336 of 1996.
16
Deepak Gulati v. State of Haryana, (2013) 7 SCC 675.
17
The Indian Penal Code, 1860 § 375, supra note, 3,2.
18
G. Achyut Kumar v. State of Odisha, (2020) 130 CLT 144.
 Analysis & Conclusion

Bare provision: Using strict interpretation of the law. Consent on the false promise of
marriage does not come under section 37519. Making accuses not liable under section 375.

Opinion: In certain cases, courts observed that every time, a man cannot be charged under
Section 375 when he fails to marry a woman although he made a promise. There is a need to
interpret statutes to hold an accused guilty under Section 375 since the promise given to the
girl was obtained by fraud since she would not have given her consent if the promise was not
made.

Decision: Doing fair for both the party. Ajay the accused never had mala fide intentions. He
had good faith when he made the promise. Hence consent obtained at the time of sexual
intercourse was valid consent. But at a later point in time breach of the promise took place.
Hence Ajay will be held liable under 41520 and not for section 375.

19
The Indian Penal Code, 1860 § 375, supra note, 3,2.
20
The Indian Contract Act, 1872 § 415, super note, 5,2
 Question: 2

Identify the provisions applied in the above-given problem

1. Joint criminal liability: The essentials of it are as follows:

a) Two or more persons
b) Engaged in the commission of an offense
c) each person engaged will be liable for that act
d) in the manner it was done alone.

2. Section 3321: Define the word “Act”

3. Section 4022: Define the word “offense”.
4. Section 3423: Where several persons do an act with common intention each of them
would be liable for that act as it is done by him alone.

Essentials

a) Common Intention
b) Several person
c) Criminal act

5. Section 10724: Defines Abatement

6. Section 120A25: Defines Criminal Conspiracy
7. Section 120B26: Punishment of the same is death, imprisonment for life, or rigorous
imprisonment for 2 years or more.
8. Section 30027: Define the offense of murder.
9. Section 30228: Prescribe the punishment of murder: Death or imprisonment for life,
and a fine.

21
The Indian Penal Code, 1860 § 33, No. 45 Of 1860, Acts of Parliament, 1860 (India).
22
The Indian Penal Code, 1860 § 40, No. 45 Of 1860, Acts of Parliament, 1860 (India).
23
The Indian Penal Code, 1860 § 34, No. 45 Of 1860, Acts of Parliament, 1860 (India).
24
The Indian Penal Code, 1860 § 107, No. 45 Of 1860, Acts of Parliament, 1860 (India).
25
The Indian Penal Code, 1860 § 102A, No. 45 Of 1860, Acts of Parliament, 1860 (India).
26
The Indian Penal Code, 1860 § 120B, No. 45 Of 1860, Acts of Parliament, 1860 (India).
27
The Indian Penal Code, 1860 § 300, No. 45 Of 1860, Acts of Parliament, 1860 (India).
28
The Indian Penal Code, 1860 § 302, No. 45 Of 1860, Acts of Parliament, 1860 (India).
 10. Section 51129: Punishment of attempting offense.

Application of Laws

 Issues
1. The question that needs to be addressed in the case is the culpability of
accused A, B, C, and P.

The applied concept in the case is Joint Criminal Liability. As per the given factual matrix,
five people came together which shows that meeting up of minds took place. Then all
essentials of the section are fulfilled by them making them liable for the act alone or together.

Looking at the applicability of section 3430. Which is as follows,

a) Criminal act done by several people: The word act denotes a series of acts. Afrahim
Sheikh v. State of West Bengal31 when several people act with common intention. It is
fulfilled as A, B, C, D, and E came together and attempted the offense.

b) Common acts should be done with a common intention: With it, Mahboob Shah v.
Emperor32 stated that common should be of meeting up of mind. When A, B, C, D,
and E came together, a meeting up of mind emerged—indicating a common intention.

c) All persons must participate in furthering the common intention: Barendra

Kumar Ghosh v. King Emperor33 provides the general rule, But the exception is
Shreekantiah Ramayya Munipalli v. State of Bombay34. There is no need for the
physical appearance of the accused at the crime scene if they have a common
intention and a pre-meeting of mind took place. According to Lalai alias Dindoo &
Anr. v. State of U.P.,35 it was held that even if the act were done by one party, all the

29
The Indian Penal Code, 1860 § 511, No. 45 Of 1860, Acts of Parliament, 1860 (India).
30
The Indian Penal Code, 1860 § 34, supra note, 3,6.
31
Afrahim Sheikh v. State of West Bengal, AIR 1964 Sc 1263.
32
Mahboob Shah v. Emperor, AIR 1945 PC 118.
33
Barendra Kumar Ghosh v. King Emperor, AIR 1925 PC 1.
34
Shreekantiah Ramayya Munipalli v. State of Bombay, AIR 1955 SC 287.
35
Lalai alias Dindoo & Anr. v. State of U.P., AIR 1974 SC 2118.
 other members would be liable since they had a pre-meeting of mind with common
intention. Suresh v. State of Uttar Pradesh36, if the co-accuse has not done anything
even then due to constructive intention, then the co-accuse will be held liable as of act
done by one person.

As per the case law when the five accused persons, namely, A, B, C, D, and E, intended to
kill the Z, the victim. They had a common intention and fulfilled all the criteria of section 34.
Making them punishable under section 30237. Later when P was apprehended, it was observed
that they facilitated him but were not present at the crime scene which did not exempt him
from liability, according to Birendra Kumar Ghosh V. King Emperor38 which state that
culpability will not change if the act was done with the furtherance of common intention. So
if a person is not physically present it will not change his liability.

Hence A, B, C, D, E, and P will be jointly liable under Section 102B 39 and section 302. But
the trial court on 22nd November 2021 acquitted D, and E by giving the benefit of the doubt.

In light of it, A, B, C, and P will be liable under sections 302, 120B, and section 511 40 read
with section 3441.

Even seeing the legislature’s intent is to discourage the meeting of mind as of common
intention. Hence making all the accused liable even if anyone didn’t commit the offense but
thinking of committing it is also punishable.

Analysis & Conclusion

After analyzing the full factual matrix, it can be deduced that several groups of people have
common intentions and a pre-meeting of mind occurred. Then the act has taken place by A,
B, C, D, and E along with P a facilitating accuses. All several people will be liable for the act
as the individual person did. Even accuse is present or not present at the crime scene.
36
Suresh v. State of Uttar Pradesh, AIR 2001 SC 1344.
37
The Indian Penal Code, 1860 § 302, supra note, 8,6.
38
Barendra Kumar Ghosh v. King Emperor, supra note, 33,7.
39
The Indian Penal Code, 1860 § 102B, supra note, 6,6.
40
The Indian Penal Code, 1860 § 511, supra note, 9,6.
41
The Indian Penal Code, 1860 § 34, supra note, 3,6.
Factual Application: P will be liable as A, B, C. Physical presence is not needed if they had
a common intention of doing the act. As P facilitated the group which show a per- meeting of
the mind. Hence making him liable under sections 302 42, 120B43, and section 51144 read with
section 3445.

Defense: All the rest of the accused can demand the court to give the benefit of the doubt as
given to the D and E. Along with P can demand a reduction in sentence.

Decision: If the court deems it to be sustainable, if not then the court will make A, B, C, and
P liable under sections 307, 120B, and section 511 read with section 34. And can grant
imprisonment up to 2 years or to imprisonment for life including fine.

42
The Indian Penal Code, 1860 § 302, supra note, 8,6.
43
The Indian Penal Code, 1860 § 102B, supra note, 6,6.
44
The Indian Penal Code, 1860 § 511, supra note, 9,6.
45
The Indian Penal Code, 1860 § 34, supra note, 3,6.