Bankey v State of Allahabad AIR 1960 ALL 131

CaseBankey v State of Allahabad, AIR 1960 All 131
CourtBefore Allahabad High Court
BenchJustice V.D. Bhargava
Decided on18 May, 1960
AbstractIn the present case, a complaint was filed against the accused who had infringed a women's modesty when there were no male members at the house. However, the accused was not successful in satisfying his immoral motives because of the presence of people in the neighborhood. There is a difference between sexual assault and rape. This difference has been explained thus, "When a person makes entry into an apartment occupied by a lady the first and foremost rational inference that can be drawn in the circumstances must be that it was with the intention of committing some offence in relation to that lady. If it is only making gestures and uttering words requesting her to agree to commit some sexual offence, or remove the petticoat or dhoti, then, in that event, it would amount only to an offence under Section 509, I. P. C., but if he proceeds further and thereafter tries forcibly to commit rape and does not stop only at intruding into the apartment and making gestures, those offences will be under Section 376 read with Section 511, I. P. C. and the last step would be when he actually Succeeds in committing rape."
Author of the briefAditya Gor
KeywordsSexual Intercourse, Sexual Assault, Rape, Indian Penal Code, Criminology.

Brief Facts and Procedural History:

Chunni was resident of Mauza Basoma, District Budaun. On 06-11-1957, which was a day previous to Puranmashi, Chunni along with his son Jai Lal went to Asafpur railway station on his way to Chaubari for taking a dip in the Ganges. He left the ladies and children at the house. Since the train was to leave in the night, they had gone a little earlier and they were sleeping at the railway station. It is alleged that the accused- Bankey taking the opportunity of the absence of the adult male members of the family entered the house at about 10 O’clock in the night, caught hold of Smt. Tufania, wife of Jai Lal who was sleeping alone in the Kothri and forcibly wanted to remove her dhoti and to have sexual intercourse with her. Bankey was held liable and convicted under section 376 read with section 511 of Indian Penal Code.

Arguments of the appellant:

  • There had been a dispute about the mend of a field between appellant and Chunni; and Chunni had threatened to implicate the accused in some false case and therefore he has been implicated.
  • The ingredients of Section 509 were not put to the appellant when he was being examined under Section 342, CrPC.

Arguments of the respondent:

  • The respondent-prosecution has produced five witnesses in order to prove their case. All these witnesses had confirmed that the accused entered into the house to satisfy his immoral motives

Ratio:

  • The appellant was not able to produce any evidence of the fact that there had been any dispute about the mend. He has not been able to show when the dispute took place. If it had taken place only a short time before the incident that may have been a reason for false implication, but if it had taken place long ago that would be no ground for falsely implicating.
  • From the evidence of the prosecution witnesses there does not appear to be any doubt that Bankey had entered the house of Chunni with some immoral motive. But the bench did not think that he had gone to the extent of actually committing rape. He appears to have been making only gestures and uttering sounds, and intruding upon her privacy by removing her petticoat or sari in order probably to persuade Smt. Toofania to agree to his immoral desire, on which her mother-in-law and the neighbours got up. Under such circumstance, he will be liable under section 509 read with section 511 of Indian Penal Code.
  • When a person makes entry into an apartment occupied by a lady the first and foremost rational inference that can be drawn in the circumstances must be that it was with the intention of committing some offence in relation to that lady. If it is only making gestures and uttering words requesting her to agree to commit some sexual offence, or remove the petticoat or dhoti, then, in that event, it would amount only to an offence under Section 509, I. P. C., but if he proceeds further and thereafter tries forcibly to commit rape and does not stop only at intruding into the apartment and making gestures, those offences will be under Section 376 read with Section 511, I. P. C. and the last step would be when he actually Succeeds in committing rape. Then it would be an offence under Section 376, I. P. C.
  • By further making a reference to the case of Dhum Singh v. Emperor, AIR 1925 All 448, the court held that the punishment can be converted from major offence to minor offence if it is found that there are certain ingredients common to both the offences.

Held:

Thus the accused appellant was held liable under section 509 read with section 511 of Indian Penal Code and thereby sentenced to simple imprisonment for six months and a fine of Rupees 100/-, and in default, three months simple imprisonment.