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kavitha (not working)     17 November 2011

Section 376

explain about s.376 pls



Learning

 15 Replies

M.Sheik Mohammed Ali (advocate)     17 November 2011

which act either IPC or CRPC, pls confirm

ravindra (Analyst)     17 November 2011

Section 376. Punishment for rape 1[376. Punishment for rape.—(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either descripttion 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 woman raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either descripttion 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: - (a) Being a police officer commits rape- (i) Within the limits of the police station to which he is appointed; or (ii) In the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) On a woman is his custody or in the custody of a police officer subordinate to him; or (b) Being a public servant, takes advantage of his official position and commits rape on a woman is custody as such public servant or in the custody of a public servant subordinate to him; or (c) Being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or (d) Being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or (e) Commits rape on a woman knowing her to be pregnant; or (f) Commits rape when she is under twelve years of age; or (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 descripttion for a term of less than ten years. Explanation 1 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. Explanation 2 "Women's or children's institution "means an institution, whether called an orphanage of a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children. Explanation: 3 "Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation]. CLASSIFICATION OF OFFENCE Para I Punishment—Imprisonment for life or imprisonment for ten years and fine—Cognizable—Non-bailable—Triable by Court of Ses­sion—Non-compoundable. Para II Punishment—Imprisonment for two years or fine or both—Non-Cognizable—Bailable—Triable by Court of Session—Non-compoundable. Comments Charge Section 376(2)(g) embodies a principle of joint liability and the essence of that liability is the existence of common intention; that common intention presupposes prior concert which may be determined from the conduct of offenders revealed during the course of action and it could arise and be formed suddenly, but there must be meeting of minds. It is not enough to have the same intention independently of each of the offender. In such cases, there must be criminal sharing, marking out a certain measure of jointness in the commission of offence; Ashok Kumar v. State of Haryana, AIR 2003 SC 777. Corroborative evidence Corroborative evidence is not an imperative component of judicial credence in every case of rape; State of Maharashtra v. Suresh Nivruthi Bhusare, (1997) 2 Crimes 257 (Bom). Medical evidence (i) Medical evidence corroborated by version of prosecutrix independent witness also in favour of the victim. No evidence of causing an unknown person a false implication at the cost of family name, conviction based on her evidence upheld; Lakha v. State of Rajasthan, 1999 Cr LJ 3418 (Raj). (ii) Where an innocent girl of just 9 years is caught hold and raped by accused, and FIR is lodged well in time, evidence of her testimony also corroborated by medical evidence, no evidence for false implication, failure on part of investigation are not enough to deny version of prosecutrix and other corroborative evidences; Najoor Ahmad v. State of Bihar, 1999 Cr LJ 2550 (Pat). Prosecutrix consenting to s*xual intercourse (i) If a woman meekly submits to s*xual intercourse it would be a case of consent; State of Maharashtra v. Suresh Nivrutti Bhu­sare, (1997) 2 Crimes 257 (Bom). (ii) Normally a woman would not falsely implicate for the of­fence of rape at the cost of her character. In Indian society, it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped; Madan Lal v. State of Madhya Pradesh, (1997) 2 Crimes 210 (MP). Rape and abetment to suicide It has been held that the concent cannot be inferred merely because co-accused was present in house at the time accused raped the victim. Neither can co-accused be convicted under section 376(2)(g) merely because victim girl allegedly stated before committing suicide that both of accused raped her; Ashok Kumar v. State of Haryana, AIR 2003 SC 777. Rape of a minor (i) Where a minor girl just 10 years of age raped by accused, a minor of 16 years on the date of incident, convicted and sentenced to 3 years R.I., therefore, since then many years added to his age, he cannot be even sent to an approved school under the Act and as such his conviction is maintained but sentence set aside; Bire alias Bir Bahadur Singh v. State of Uttar Pradesh, 2000 Cr LJ 87 (All). (ii) When the prosecutrix is a minor aged below 16 years, the question of her being a consenting party to the s*xual inter­course does not arise or is of no consequence; Naresh v. State of Haryana, (1997) 2 Crimes 587 (P&H).

kavitha (not working)     17 November 2011

no idea a guy had extent physical relationship with a girl by saying he will marry her now he refused to marry that girl
 

kavitha (not working)     17 November 2011

people saying mutual consent of s*x is not rape i agree but if a guy already finalized to whom he going to marry and flirting other girls in the name of marriage and having s*x is it not a rape , because a girl surrender herself by thinking he going to be her future partner ..... so my question if a person wantedly cheat a girl for s*x in the name of false promise will it not consider as rape??????? because if you go and ask unknown girl for s*x she will slap you, so some guys are using false promise of marriage trauma is it not wrong tel me pls

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     17 November 2011

Dear kavitha

it is not a Rape, it is a case for Criminal breach of trust u/s 405 IPC and the punishm,ent for the same is mentioned in section 406 IPC Read it care fully

Section 376. Punishment for rape

 

1[376. Punishment for rape.—(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either descripttion 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 woman raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either descripttion 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: -

 

(a) Being a police officer commits rape-

 

(i) Within the limits of the police station to which he is appointed; or

 

(ii) In the premises of any station house whether or not situated in the police station to which he is appointed; or

 

(iii) On a woman is his custody or in the custody of a police officer subordinate to him; or

 

(b) Being a public servant, takes advantage of his official position and commits rape on a woman is custody as such public servant or in the custody of a public servant subordinate to him; or

 

(c) Being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or

 

(d) Being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

 

(e) Commits rape on a woman knowing her to be pregnant; or

 

(f) Commits rape when she is under twelve years of age; or

 

(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 descripttion for a term of less than ten years.

 

Explanation 1

 

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.

 

Explanation 2

 

"Women's or children's institution "means an institution, whether called an orphanage of a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.

 

Explanation: 3

 

"Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation].
 


 

CLASSIFICATION OF OFFENCE

 

Para I

 

Punishment—Imprisonment for life or imprisonment for ten years and fine—Cognizable—Non-bailable—Triable by Court of Ses­sion—Non-compoundable.

 

Para II

 

Punishment—Imprisonment for two years or fine or both—Non-Cognizable—Bailable—Triable by Court of Session—Non-compoundable.

 

 

Comments

 

Charge

 

Section 376(2)(g) embodies a principle of joint liability and the essence of that liability is the existence of common intention; that common intention presupposes prior concert which may be determined from the conduct of offenders revealed during the course of action and it could arise and be formed suddenly, but there must be meeting of minds. It is not enough to have the same intention independently of each of the offender. In such cases, there must be criminal sharing, marking out a certain measure of jointness in the commission of offence; Ashok Kumar v. State of Haryana, AIR 2003 SC 777.

 

Corroborative evidence

 

Corroborative evidence is not an imperative component of judicial credence in every case of rape; State of Maharashtra v. Suresh Nivruthi Bhusare, (1997) 2 Crimes 257 (Bom).

 

Medical evidence

 

(i) Medical evidence corroborated by version of prosecutrix independent witness also in favour of the victim. No evidence of causing an unknown person a false implication at the cost of family name, conviction based on her evidence upheld; Lakha v. State of Rajasthan, 1999 Cr LJ 3418 (Raj).

 

(ii) Where an innocent girl of just 9 years is caught hold and raped by accused, and FIR is lodged well in time, evidence of her testimony also corroborated by medical evidence, no evidence for false implication, failure on part of investigation are not enough to deny version of prosecutrix and other corroborative evidences; Najoor Ahmad v. State of Bihar, 1999 Cr LJ 2550 (Pat).

 

Prosecutrix consenting to s*xual intercourse

 

(i) If a woman meekly submits to s*xual intercourse it would be a case of consent; State of Maharashtra v. Suresh Nivrutti Bhu­sare, (1997) 2 Crimes 257 (Bom).

 

(ii) Normally a woman would not falsely implicate for the of­fence of rape at the cost of her character. In Indian society, it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped; Madan Lal v. State of Madhya Pradesh, (1997) 2 Crimes 210 (MP).

 

Rape and abetment to suicide

 

It has been held that the concent cannot be inferred merely because co-accused was present in house at the time accused raped the victim. Neither can co-accused be convicted under section 376(2)(g) merely because victim girl allegedly stated before committing suicide that both of accused raped her; Ashok Kumar v. State of Haryana, AIR 2003 SC 777.

 

Rape of a minor

 

(i) Where a minor girl just 10 years of age raped by accused, a minor of 16 years on the date of incident, convicted and sentenced to 3 years R.I., therefore, since then many years added to his age, he cannot be even sent to an approved school under the Act and as such his conviction is maintained but sentence set aside; Bire alias Bir Bahadur Singh v. State of Uttar Pradesh, 2000 Cr LJ 87 (All).

 

(ii) When the prosecutrix is a minor aged below 16 years, the question of her being a consenting party to the s*xual inter­course does not arise or is of no consequence; Naresh v. State of Haryana, (1997) 2 Crimes 587 (P&H).

 

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     17 November 2011

Section 405. Criminal breach of trust

 

Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".

 

1[Explanation 2[1]

 

A person, being an employer 3[of an establishment whether exempted under section 17 of the Employees' Provident funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not] who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.]

 

4[Explanation 2

 

A person, being an employer, who deducts the employees' contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.]

 

Illustrations

 

(a) A, being executor to the will of a deceased person, dishonestly disobeys the law which directs him to divide the effects according to the will, and appropriate them to his own use. A has committed criminal breach of trust.

 

(b) A is a warehouse-keeper. Z gong on a Journey, entrusts his furniture to A, under a contract that it shall be returned on payment of a stipulated sum for warehouse room. A dishonestly sells the goods. A has committed criminal breach of trust.

 

(c) A, residing in Calcutta, is agent for Z, residing at Delhi. There is an express or implied contract between A and Z, that all sums remitted by Z to A shall be invested by A, according to Z's direction. Z remits a lakh of rupees to A, with directions to A to invest the same in Company's paper. A dishonestly disobeys the direction and employs the money in his own business. A has committed criminal breach of trust.

 

(d) But if A, in the last illustration, not dishonestly but in good faith, believing that it will be more for Z's advantage to hold shares in the Bank of Bengal, disobeys Z's directions, and buys shares in the Bank of Bengal, for Z, instead of buying Company's paper, here, though Z should suffer loss, and should be entitled to bring a civil action against A, on account of that loss, yet A, not having acted dishonestly, has not committed criminal breach of trust.

 

(e) A, a revenue-officer, is entrusted with public money and is either directed by law, or bound by a contract, express or implied, with the Government, to pay into a certain treasury all the public money which he holds. A dishonestly appropriates the money. A has committed criminal breach of trust.

 

(f) A, a carrier, is entrusted by Z with Property to be carried by land or by water. A dishonestly misappropriates the property. A has committed criminal breach of trust.
 


 

Comments

 

Criminal Conspiracy

 

Sanction for prosecution is not necessary if a public servant is charged for offence of entering into a criminal conspiracy for committed breach of trust; State of Kerala v. Padmanabham Nair, 1999 Cr LJ 3696 (SC).

 

Criminal breach of trust: Meaning and extent

 

It must be proved that the beneficial interest in the property in respect of which the offence is alleged to have been committed was vested in some person other than the accused, and that the accused held that property on behalf of that person. A relationship is created between the transferor and transferee, whereunder the transferor remains the owner of the property and the transferee has legal custody of the property for the benefit of the transferor himself or transferee has only the custody of the property for the benefit of the transferor himself or someone else. At best, the transferee obtains in the property entrusted to him only special interest limited to claim for his charges in respect of its safe retention, and under no circumstances does he acquire a right to dispose of that property in contravention of the condition of the entrustment; Jaswantrai Manilal Akhaney v. State of Bombay, AIR 1956 SC 575.

 

Entrustment

 

The word entrusted in the section is very important unless there is entrustment, there can be no offence under the section; Ramaswami Nadar v. State of Madras, AIR 1958 SC 56.

 

------------------------

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     17 November 2011

 

Section 406. Punishment for criminal breach of trust

 

Whoever commits criminal breach of trust shall be punished with imprisonment of either descripttion for a term which may extend to three years, or with fine, or with both.

 

CLASSIFICATION OF OFFENCE

 

Punishment—Imprisonment for 3 years and fine, or both—Cognizable—Non-bailable—Triable by Magistrate of the first class—Compoundable by the owner of the property in respect of which breach of trust has been committed, with the permission of the court.


 

kavitha (not working)     17 November 2011

sec 417 for ???? what is the diff b/w 417 and 406 .. which one is best to file on him to take immediate action and tel me about 420

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     17 November 2011

Hang him hang him, said the read queen,

we would fix the blame later

- Alice in Wonderland.

 

My Friend, advise is to forget and move ahead.

 

 

Regards,
 
Shonee Kapoor
harassed.by.498a@gmail.com

kavitha (not working)     17 November 2011

shonee ji what is the use of move on , to be honest no future for me i am very much depressed about this issue , p;s suggest me good section, life is a big problem and i am ready to face it

sandeep sangwan (-----)     17 November 2011

R/seniors,

In this case did't we use Sec-375 (fifthly) ?  

According to S-375 (5) - With her consent , when at the time of giving consent such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substances of that to which she gives consent.

I think when the consent given by the girl is under the perception, that soon they got married, but latter on that guy break his promise. 

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     17 November 2011

Kavitha,

 

Meet a counsellor first if you are depressed.

 

Life happens, and so does heart-breaks and all.

 

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

kavitha (not working)     17 November 2011

do you think if i file a case also i wont get justice if so tel me , i thought my office colleague sms evidence enought to prove and the resort bill too

Arvind Sehdev (Advocate)     17 November 2011

What Mr.Shonee means [if I understand him correctly] is that if you go ahead with this you will not be able to live a normal life which you will regret later....

Such a case brings along with it a lot of stigma.... I hope you understand.....

You should start a new life and not think of revenge.....

Rest is your call......


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