Law of Crime-I Project
Law of Crime-I Project
BHOPAL
SEMESTER III
LAW OF CRIME-I
CASE ANALYSIS
END TERM PROJECT
ON
Table of Contents
1
TABLE OF AUTHORITIES............................................................................................3
NAME AND DATE OF THE JUDGEMENT..................................................................4
BACKGROUND...............................................................................................................4
1. CASE UNTIL NOW..............................................................................................4
2. REASON OF APPROCHING THIS COURT.......................................................4
SIZE OF THE BENCH.....................................................................................................5
NAME(S) OF THE JUDGES...........................................................................................5
NAMES OF THE ADVOCATES.....................................................................................5
MATERIAL FACTS OF THE CASE...............................................................................5
ISSUES RAISED..............................................................................................................6
1. Factual issues.........................................................................................................6
2. Legal issues............................................................................................................6
CONTENTIONS ADVANCED.......................................................................................6
1. Petitioner(s)/Appellant(s).......................................................................................6
2. Respondent(s).........................................................................................................6
PRINCIPLES AND THEORIES USED...........................................................................7
CONSTITUTION PROVISIONS.................................................................................7
STATUTES AND ORDERS........................................................................................7
PRINCIPLE OR THEORIES........................................................................................9
PRECEDENTS AND OTHER AUTHORITIES............................................................10
BOOKS AND ARTICLES.........................................................................................10
INDIAN CASE LAWS...............................................................................................10
FOREIGN JUDGEMENTS........................................................................................12
PRECEDENTS...........................................................................................................12
CONCURRING-.....................................................................................................12
DISTINGUISHED..................................................................................................12
JUDGEMENT.................................................................................................................12
JUDGEMENT IN PERSONAM.................................................................................12
JUDGEMENT IN REM..............................................................................................12
JUDGEMENT(S) OVERRULED...............................................................................13
OBSERVATION AND CONCLUSION........................................................................13
TABLE OF AUTHORITIES
Cases
Statutes
3
NAME AND DATE OF THE JUDGEMENT
Dilip v State of Madhya Pradesh
Date- 16.04.2013
BACKGROUND
The session court of Seoni, Madhya Pradesh on 16.7.1992 did not found
appellant guilty on the grounds that prosecution was unable to prove that the
prosecutrix is under 16 year old and secondly, that she gave the consent for
sexual intercourse. State appelled against the judgement of Session court to the
High court. High court reversed the judgement of session court and found the
appellant guilty and awarded punishment of 7 years.
ISSUES RAISED
1. Factual issues
Whether the prosecutrix is above 16 years old or under 16 years old?
Did the consent of prosecutrix is voluntary or involuntary?
5
2. Legal issues
How does we define ‘Consent’ in the Indian Penal Code?
CONTENTIONS ADVANCED
1. Petitioner(s)/Appellant(s)
i. Counsel stated that the session judge was erred in understanding the
meaning of consent. The Consent was not voluntary as it was gained
under fear or terror or mistake of fact it does not come under
voluntary consent.
ii. The prosecutrix falls under the age of 16 years old as the confirmed
by the doctor that the prosecutrix has 28 teeth, 14 in each jaw.
Smooth pubic hair and axillary hair just started to grow. According
to the doctor it states that this only started to appear in the age of 14
years. So the question of consent should not arose in this case.
iii. Hence, the judgement of the High court is correct and the appeal
should has to be dismissed.
2. Respondent(s)
i. There was no record of the relevant time the prosecutrix was under
16 because the burden of prove was on the prosecution to prove that
the prosecutrix was under 16 which prosecution failed to do so.
Hence, it was stated that the prosecutrix did not fall under 16 and the
ground of consent does matter in this case.
iii. Thirdly, doctor has stated that that is impossible to put single finger
in the vagina of prosecutrix without pain. And if the appellant
forcefully did the intercourse there is no injury at all.
iv. Fourthly, the school certificate which has shown as the evidence of
her age that is not a strong and material evidence to be relied upon.
PRINCIPLES AND THEORIES USED
CONSTITUTION PROVISIONS
i. Article 38(1) in The Constitution Of India 1949-
State to secure a social order for the promotion of welfare of the people
(1) “The State shall strive to promote the welfare of the people by securing
and protecting as effectively as it may a social order in which justice,
social, economic and political, shall inform all the institutions of the
national life”1
The obligation to the state authorities particularly, the director general of
police and to the home ministry to issue some guidelines as per the rape
victims as to what kind of treatment has to be given not only from the
society also from the state authorities which is binding on all the courts
and civil authorities all over India.
1
Article 38(1) in The Constitution Of India 1949
7
ii. Section 90 of The Indian Penal Code-
Section 90 of the Indian Penal Code- Explain that what can not be regarded
as consent in the first part of Section 90 of the Indian Penal Code.
iii. Section 375 of The Indian Penal Code- “ Section 375 of IPC defines rape as
a criminal offence and states that a man is said to commit rape when he has
sexual intercourse with a woman against her or without her consent or if she
is a minor. Under Section 375 of IPC, just penetration is sufficient to
constitute the sexual intercourse necessary to the offence of rape”.
Man has said to be attemped rape if the sexual intercourse fall under any of
this following situations:
Consent was taken under the fear of death.
If the consent was give under the mistake of fact that the accused is the husband
of victim which she is lawfully married.
Consent given but victim was not in the sound mind.
Given consent does not matter if the victim falls under the age of 16 years old.
In the cases identifying with Sub-segment (2) of sec. 376 IPC, which
unmistakably expresses that if a cop, or a local official or some other
individual submits the offense of Rape, he will be obligated to discipline
under the domain of this part. The term of detainment in these cases will not
be under 10 years and this may likewise be stretched out to life detainment.
All the conditions identifying with the local official, cop, military are
characterized in the demonstration.
Further, corrections were made in the Indian Penal Code vide the Criminal
Law (Amendment) Act, 2013
PRINCIPLE OR THEORIES
1. Meaning of the expression of Consent under Indian Penal code-
In the vast majority of the choices where the importance of the articulation
assent under the Indian Penal Code was examined, reference was made to the
sections happening in Strouds Judicial Dictionary, Jowitts Dictionary on English
Law, Words and Phrases, Permanent Edn. furthermore, other lawful word
references. Stroud characterizes assent “as a demonstration of reason, went with
thought, the brain gauging, as in an equilibrium, the great and evil on each side.
Jowitt, while utilizing a similar language added the accompanying: Assent
guesses three things an actual force, a psychological force and a free and
genuine utilization of them”. Henceforth it is that if assent be gotten by
terrorizing, power, ruminated inconvenience, circumvention, shock, or excessive
impact, it is to be treated as a dream, and not as a purposeful and free
demonstration of the brain.
In Words and Phrases, Permanent Edn., Vol. 8-A, the accompanying sections
winnowed out from certain old choices of the American courts are found:
“...grown-up females comprehension of nature and results of sexual act must be
smart agreement to comprise assent. Assent inside correctional law,
characterizing assault, requires exercise of insight in view of information on its
importance and good quality and there must be a decision among opposition and
consent...”
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PRECEDENTS AND OTHER AUTHORITIES
BOOKS AND ARTICLES
Strouds Judicial Dictionary, Jowitts Dictionary on English Law, Words and Phrases,
Permanent Edn. and other legal dictionaries.
Evidence with the regard of her age is submitted by her father and
mother that she has only 28 teeth, 14 in each jaw, smooth pubic hair and
axillary hair which was just started to grow. According to the doctor this
only starts to appear at the age of 14 years.
vi. Delhi Domestic Working Women’s forum v. Union of India and ors.7
4
AIR 2000 SC 2798
5
AIR 2003 SC 1639
6
AIR 2007 SC 3059
7
(1995)1 SCC 14
11
FOREIGN JUDGEMENTS
NIL
PRECEDENTS
CONCURRING-
The present judgement concurs and uses the opinion of all the aforementioned
judgements in discussing the age of the prosecutrix and the meaning of consent in
Indian penal code. The court uses its mind and applies it to the particular facts and
circumstances. The term ‘Consent’ has been discussed at length and given appropriate
meaning thereto.
DISTINGUISHED
There were no conflicting cases and the scope of judgement included discussion of the
terms according to the facts and circumstances. The Appellant had factual and legal
issues which were credited to and the court did not differed with the findings of the
lower court and High court.
JUDGEMENT
JUDGEMENT IN PERSONAM
The judgement of High court stated that the age of the prosecutrix was under 16 years
and when the victim is under 16 years the question of consent is totally irrelevant here.
As the counsel of state had proved that the prosecutrix was under 16 years at the
relevant time. So the court did not find any fault in impugned judgement and the appeal
is liable to be dismissed.
JUDGEMENT IN REM
It is the obligation to the state authorities particularly, the director general of police and
to the home ministry to issue some guidelines as per the rape victims as to what kind of
treatment has to be given not only from the society also from the state authorities which
is binding on all the courts and civil authorities all over India. The proper guidelines has
been state in the case of Delhi domestic working women’s forum v. union of India and
ors8.
8
(1995) 1 SCC 14
JUDGEMENT(S) OVERRULED
The judgment session court was overruled by the High court of Madhya Pradesh as well
as by supreme court as the judgment stated that they did not found appellant guilty on
the grounds that prosecution was unable to prove that the prosecutrix is under 16 year
old and secondly, that she gave the consent for sexual intercourse.
The present judgement concurs and uses the opinion of all the aforementioned
judgements in discussing the age of the prosecutrix and the meaning of consent in
Indian penal code. The court uses its mind and applies it to the particular facts and
circumstances. The term ‘Consent’ has been discussed at length and given appropriate
meaning thereto. The judgement of High court stated that the age of the prosecutrix was
under 16 years and when the victim is under 16 years the question of consent is totally
irrelevant here. As the counsel of state had proved that the prosecutrix was under 16
years at the relevant time. So the court did not find any fault in impugned judgement
and the appeal is liable to be dismissed.
9
AIR 1981 SC 39
10
AIR 2000 SC 2798
11
AIR 2003 SC 1639
13
Session court does not put an affect on the case and didn’t found guilty appellant. That
was not at all accepted by the society. Government shoud have given proper guidelines
for the case of sexual assault.
Government did put guidelines in the case of Dilip v State of Madhya Pradesh after
seeing the judgement of session court which is not acceptable.