NATIONAL LAW INSTITUTE UNIVERSITY,

BHOPAL

SEMESTER III

LAW OF CRIME-I
CASE ANALYSIS
END TERM PROJECT

ON

DILIP V STATE OF MADHYA PRADESH

2013 CR.L.J.2446 (SC)

SUBMITTED TO:
SUBMITTED BY:

ASST. PROF DIVYA SALIM

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

Bishnudayal v. State of Bihar-........................................................................................10

Delhi Domestic Working Women’s forum v. Union of India and ors............................11
Pradeep Kumar Verma v. State of Bihar and Anr.-........................................................10
State of Himachal Pradesh v. Mange Ram......................................................................10
Tanti Banjara v. State of Madhya Pradesh......................................................................10
Uday v. State of Karnataka-............................................................................................10

Statutes

Article 38(1) in The Constitution Of India 1949-.............................................................6

Code of Criminal Procedure, 1973 S161..........................................................................6
Section 375 of The Indian Penal Code-............................................................................7
Section 376 of The Indian Penal Code-............................................................................8
Section 450 of The Indian Penal Code-............................................................................8
Section 90 of The Indian Penal Code................................................................................7

3
 NAME AND DATE OF THE JUDGEMENT
Dilip v State of Madhya Pradesh

2013 CR.L.J.2446 (SC)

Date- 16.04.2013

Court- The Supreme court of India

BACKGROUND

1. CASE UNTIL NOW

Appellant was the younger brother of the Brother in law of prosecutrix.
Appellant came to the house of prosecutrix dated 13.6.1990. Her father and
elder brother left her in the house with her younger brother. Younger brother
was child so appellant took a chance and raped prosecutrix on the same day.
Prosecutrix got fainted and when she came out from her consciousness she
narrated the whole incident to his father. Father gave the FIR on the nearby
police station on the same day. Appellant got arrested on 15.6.1990. Got
arrested under Section 376 and 450 if the Indian Penal code.

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.

2. REASON OF APPROCHING THIS COURT

Appeal against the judgement of High court od Jabalpur Madhya Pradesh. High Court
Jabalpur Madhya Pradesh Reversed the Judgement of session court Seoni, Madhya
Pradesh dated- 16.7.1992 which was in the favour of appellant. High Court Judgement
found appellant guilty.
 SIZE OF THE BENCH
Division Bench

NAME(S) OF THE JUDGES

B.S. Chauhan and F.M. Ibrahim Kalifulla, JJ.

NAMES OF THE ADVOCATES

Appellant(s)- B. Sreedhar, and Ashok Kumar Mahajan, Advs.

Respondent(s)- Vibha Datta Makhija, Adv.

MATERIAL FACTS OF THE CASE

1. Appellant was the younger brother of the Brother in law of prosecutrix.
Appellant came to the house of prosecutrix dated 13.6.1990.
2. Her father and elder brother left her in the house with her younger brother.
Younger brother was child so appellant took a chance and raped prosecutrix on
the same day.
3. Prosecrtrix got fainted and when she came out from her consciousness she
narrated the whole incident to his father.
4. Father gave the FIR on the nearby police station on the same day. Appellant got
arrested on 15.6.1990. Got arrested under Section 376 and 450 if the Indian
Penal code.
5. 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.
6. 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.

ii. Secondly, The consent of the prosecutrix was voluntary as

prosecutrix did not forcefully insisted to appellant to stop. And as
stated her saree, petikot and panty all are removed and she does not
resisted forcefully as it is not possible for the appellant to remove it.

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.

STATUTES AND ORDERS

i. Code of Criminal Procedure, 1973 S161 –

Examination of witnesses by police.

(1) “Any police officer making an investigation under this Chapter, or any
police officer not below such rank as the State Government may, by general
or special order, prescribe in this behalf, acting on the requisition of such
officer, may examine orally any person supposed to be acquainted with the
facts and circumstances of the case”.
(2) “Such person shall be bound to answer truly all questions relating to such
case put to him by such officer, other than questions the answers to which
would have a tendency to expose him to a criminal charge or to a penalty or
forfeiture”.
(3) “The police officer may reduce into writing any statement made to him
in the course of an examination under this section; and if he does so, he shall
make a separate and true record of the statement of each such person whose
statement he records”.
In this prosecutrix stated that the appellant threatened her to kill her if she
shouted and appellant filled a cloth in her mouth and it is impossible for her
to shout.

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.

There are 2 grounds under Section 90.

First from the point of view of victim and second from the point of view of
the accused.
That the accused has a knowledge or has a reason to believe that the consent
given by victim is misconception or under the fear or terror.
Then the second ground emphasis that the accused has the knowledge that
consent is taken under misconception or under the fear.
Both the grounds has to be satisfied.

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.

iv. Section 450 of The Indian Penal Code-

“Whoever commits house-trespass in order to the committing of any offence
punishable with imprisonment for life, shall be punished with imprisonment
of either description for a term not exceeding ten years, and shall also be
liable to fine”.
v. Section 376 of The Indian Penal Code-
 The offense of Rape is characterized under area 375 of IPC. It is a
demonstration of intense sex with a lady without wanting to. Segment 376 of
IPC gives discipline to submitting the offense of assault.

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...”

9
 PRECEDENTS AND OTHER AUTHORITIES
BOOKS AND ARTICLES
Strouds Judicial Dictionary, Jowitts Dictionary on English Law, Words and Phrases,
Permanent Edn. and other legal dictionaries.

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...”

INDIAN CASE LAWS

i. Bishnudayal v. State of Bihar2-

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.

ii. Tanti Banjara v. State of Madhya Pradesh3-

In this case same thing happened as to the concerned to the age of
prosecutrix has 28 teeth which states that the prosecutrix is near 14 years
old. So, no question of consent should be arose as the consent under 16 years
old count as subject of irrevalance.
2
Air 1981 SC 39
3
Air 2013 SC 46
 iii. State of Himachal Pradesh v. Mange Ram4-
Submission of body under fear and terror does not count as consent.

iv. Uday v. State of Karnataka-5

Each individual case has to be study on his facts and other surroundings.
There is no straight formula to check the consent of victim. This matter has
to be given special attention as to the matter of consent of victim. If the
consent is given under misconception or fear or terror or mistake of fact. It
does not count as a voluntary consent at all.

v. Pradeep Kumar Verma v. State of Bihar and Anr.-6

Section 375 of the Indian Penal Code- Defines rape against her will.
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.

There are 2 grounds under Section 90.

First from the point of view of victim and second from the point of view of
the accused.
That the accused has a knowledge or has a reason to believe that the consent
given by victim is misconception or under the fear or terror.
Then the second ground emphasis that the accused has the knowledge that
consent is taken under misconception or under the fear.
Both the grounds has to be satisfied.

vi. Delhi Domestic Working Women’s forum v. Union of India and ors.7

In this case 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 ors

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.

OBSERVATION AND CONCLUSION

Though the reasoning used by both the judges was same of High Court and Supreme
Court, they reached to the same conclusion that the impugned Act is valid.

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.

In Bishnudayal V. State of Bihar9 and In Tanti Banjara V. State of Madhya Pradesh. In

both the cases stated that how can girl can be said as 14 year girl as she as 28 teeth 15
each in one jaw and appearing of smooth pubic hair and axillary hair which according
to the doctor started appearing in the age of 14 years old.

In State of Himachal Pradesh v. Mange Ram10 and In Uday v. State of Karnataka11. In

both of the cases it was stated that Submission of body under fear and terror does not
count as consent. And Each individual case has to be study on his facts and other
surroundings. There is no straight formula to check the consent of victim. This matter
has to be given special attention as to the matter of consent of victim. If the consent is
given under misconception or fear or terror or mistake of fact. It does not count as a
voluntary consent at all. That proves that the consent of prosecutrix was not voluntary it
was gained under fear and terror.

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.