Back
2009(3) Supreme 698
SUPREME COURT OF INDIA
(From Rajasthan High Court)
Dr. Arijit Pasayat and Asok Kumar Ganguly, JJ.
State of Rajasthan — Appellant
versus
Hemraj & Anr. — Respondent
Criminal Appeal No. 847 of 2009
(Arising out of SLP(Crl.) No. 2207 of 2008)
Decided on : 27-04-2009
Facts of the case :
1. Respondents were facing the trial for alleged commission of offence punishable under Section 342 and 376(2) of the IPC. PW1 was the victim.
2. The trial court noticed that it was the accused Chandan who committed rape on her. There was no allegation of rape against the other accused persons namely Hemraj and Smt. Kamla. The accused Chandan was facing trial under the provisions of Juvenile Justice Act, 2000 Act’).
3. The trial court held the accused Hemraj guilty of offence punishable under Section 342 IPC and held that the Accused Kamla cannot be convicted in terms of Section 376 (2) IPC.
4. The State filed an appeal questioning acquittal of the respondent from the accusations relatable to Section 376(2) IPC.
5. The High Court held that so far as the accused Hemraj is concerned his presence at the spot was doubtful. In any event both the respondents cannot be held guilty of offence punishable under Section 376(2) IPC.
Finding of the Court :
A woman cannot be said to have an intention to commit rape.
Result : Appeal dismissed.
JUDGMENT
Dr. Arijit Pasayat, J.—
1. Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single Judge of the Rajasthan High Court, Jaipur Bench dismissing the application for grant of leave to question correctness of the judgment of learned Additional District Sessions Judge (Fast track), No.2 Alwar.
3. Background facts in a nutshell are as follows:
Respondents were facing the trial for alleged commission of offence punishable under Section 342 and 376(2) of the Indian Penal Code, 1860 (in short the ‘IPC’). PW1 was the victim. The trial court noticed that it was the accused Chandan who committed rape on her. There was no allegation of rape against the other accused persons namely Hemraj and Smt. Kamla. The accused Chandan was facing trial under the provisions of Juvenile Justice Act, 2000 (in short the ‘Juvenile Act’).
The trial court as noted above held the accused Hemraj guilty of offence punishable under Section 342 IPC and held that the Accused Kamla cannot be convicted in terms of Section 376 (2) IPC. The State filed an appeal questioning acquittal of the respondent from the accusations relatable to Section 376(2) IPC. The High Court held that so far as the accused Hemraj is concerned his presence at the spot was doubtful. In any event both the respondents cannot be held guilty of offence punishable under Section 376(2) IPC.
4. Learned counsel for the appellant-State submitted that scope and ambit of Section 376(2)(g) and the explanation appended thereto have been lost sight of by the High Court.
5. Learned counsel for the respondent on the other hand submitted that the High Court rightly noted that the presence of accused Hemraj at the alleged time of rape has not been established. Additionally, 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.
6. In order to appreciate rival submissions Sections 375 and 376 need to be noted. They so far as relevant read as follows:-
“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.]
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,—
xx xx xx xx xx
(g) commits gang rape,
shall
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
