i.

(a) she is raped by one or more persons constituting a group, or (b) she is raped by
one or more persons acting in furtherance of a common intention;”

Section 149

1. There should be an unlawful assembly, as defined under Section 141;

2. Any member of the unlawful assembly must commit a criminal act;
3. The act must be for the prosecution of the common object of the assembly or one that
was likely to be committed in pursuit of the common object;
 4. Members must have voluntarily joined the unlawful assembly and be aware of the
common object.
5. A person is accountable for an offence committed just by being there and sharing a
common aim of the assembly, even though he had no intention of doing so.

Section 3801

a. dishonest intention to take property,

b. the property must be movable,
c. it should be taken out of the possession of another person,
d. it should be taken without the consent of that person,
e. there must be some moving of the property in order to accomplish or taking of
it.

Section 144- unlawful assembly with deadly weapon

Section 442- House Trespass

1. The crime House trespass must essentially contain all of the elements of criminal
trespass, namely:

(i) an unauthorised entry into or upon another's property against the will of
the person in possession; or
(ii) an authorised entry lawfully obtained but unlawfully remaining therein;
and
(iii) such entry or unlawful stay must be made with the intent of:
a. committing an offence; or
b. intimidating, insulting, or annoying the person in possession of
the property.

2. The entered property (building, tent, or vessel) must be utilised as a human

residence, a place of worship, or a location for property custody.

APPLICATION AND ANALYSIS

1
State of Assam v. Abdul Jolil, GR 2303 of 2014.
In the case of Pramod Mahto & Ors. v. State of Bihar,2 Accused Nos. 1 to 5 broke into a
house via the roof after destroying a piece of it, and accused Nos. 1 to 4 raped the victims
while accused No. 5 stood watch over them with a revolver in his hand, overpowering them
and forcing them to submit to the rape without protest. Here, the Court held the accused No.5
constructively guilty under Section 376 of the IPC by invoking Explanation I to Clause (g) of
Sub-section (2), which states “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.” He was also held guilty of theft
in dwelling houses under Section 380.

Similarly, in the present case, which has the same circumstances, Accused No. 5 is guilty of
gang rape under Section 376D as his act meets the ingredients mentioned above, i.e., there
was both actus reus and means rea as a woman was raped, and she was raped by one or more
persons acting in furtherance of a common intention as he held the gun to overpower the
victim and to make her submit to the rape. Moreover, as laid down in Yunis alias Kariya, etc.
v. State of Madhya Pradesh3, the presence of the accused as part of an unlawful assembly is
sufficient to convict him of the offence.

Now moving on to establishing the offence of unlawful assembly, we look at Section 141 and
144. Section 141 discusses unlawful assembly, and the primary aspects and points to be
highlighted while trying to comprehend how Section 141 relates to the situation.4

Important needs to comply with Indian Penal Code Section 141:

a. Assembly of five or more people

b. Common Object

It is apparent that 5 persons were present in the act in this case. It is not necessary for the
participants to have met and conspired to decide if the unlawful assembly had a common
objective, but such intent might be inferred from the facts and circumstances. 5 A coordinated
attack by all five members can prove an unlawful assembly's common intention. The
common object in the above application is theft and rape, as well as criminal trespass. Even if
accused no 5 did not conduct the act of rape, he did help in the act by breaking into the

2
Pramod Mahto & Ors. v. State of Bihar, AIR 1989 SC 1475.
3
Yunis alias Kariya, etc. v. State of Madhya Pradesh, AIR 2003 SC 539.
4
Moti Das & Ors. v. State of Bihar, AIR 1954 SC 657.
5
Bhanwar Singh v. the State of M.P., (2008) 16 SCC 657.
residence, rendering him accountable under Section 141 of the IPC. Moreover, his intent is
clear by the fact that he stood guard with a gun and threatened the victim into submission.

"Any member of an unlawful assembly in prosecution of the common object of that assembly,
or such as the members of that assembly knew was likely to be committed in prosecution of
that object, every person who, at the time of the committing of that offence, is a member of
that assembly, is guilty of that offence," according to Section 149 of the Indian Penal Code.
Accused No. 5 will be held guilty under Section 376D of the IPC even though he did not
conduct the act of rape. Additionally, accused no. 5 will also be charged under Section 144
since he joined an unlawful assembly with a deadly weapon.

Moving on, the accused is also guilty of theft as he, along with others, removed cash and
jewellery from the house and ran away. This act meets all the ingredients, i.e., there was a
dishonest intention to take property, this property was movable, it was taken out of
possession of another person without consent, and this property was moved or taken. Lastly,
he is also liable for the offence of house trespass as they made an unauthorized entry by
dismantling a portion of the roof, with the intent of committing an offence (gang rape &
theft) and the property entered into was a human dwelling.

CONCLUSION

In conclusion, the accused no.5 is guilty of all the charges the others are guilty of, i.e., gang
rape, theft, unlawful assembly with a deadly weapon, and house trespass.

Question 2: Suraj carries on business of providing solutions to the problems of various

sections of the society. This he advertises in a number of national dailies and promises to
dispatch solutions by VPP to the persons answering the advertisement from which he charged
a good sum of money. In one of the advertisements, he has assured sure success to the law
students who could not prepare for their examination throughout the year. Many law students
responded to this advertisement. They received sealed envelopes containing few typed pages
in which they were general advices as to how important it is to work hard during examination
days and that they must read the case material thoroughly and discuss amongst themselves
and if they do so, they are bound to succeed in the examination. In the end it contained a
slogan that ‘there is no substitute to hard work.’ The students who had send the remittances in
response to the advertisement want to bring a criminal action against Suraj alleging that they
wouldn’t have parted with the money had they known that the solutions offered by him were
the advices that they were aware of. They alleged that the advertisement was intended to
deceive them and had they not been so deceived, they would not have parted with their
money. The argument of Suraj is that he had done nothing to warrant criminal action and at
best they could have cause of action under civil law for damages. Decide as a judge the
criminal liability, if any, of Suraj keeping in view the rival contentions of the parties.

Answer:

SURAJ HAS COMMITTED THE FOLLOWING PENAL OFFENCES:

Section 415

Cheating is defined as "deceiving a person with a fraudulent or dishonest intention so as to

deliver any property to any person or to consent that any person shall retain such property or
inducing him with a specific intention to do or omit a specific act, which he would not do or
omit if he were not deceived." Another consideration is that the act or omission should have
the potential to harm the person's body, mind, reputation, or property.

1. There must be deception on part of the accused.

2. The accused must have fraudulently or dishonestly induced such person to deliver
any property to any person or to consent that such person shall retain property.
3. The accused must intentionally induce such person to do or omit from doing a
specific act that such person would not do or omit if he were not to be deceived.
4. Such act or omission should be likely to cause harm to body, mind, reputation or
property of the person.6

Section 420

This section states that whoever cheats and, as a result of the cheating, dishonestly induces
the person to deliver any property to any person in order to make, later or destroy valuable
security or anything that is signed and capable of being converted into valuable security is
liable to imprisonment for up to seven years, with or without fine.

6
N.M. Chakrabarty v. State of West Bengal, AIR 1977 SC 1174.
APPLICATION AND ANALYSIS

Deception is one of the most significant factors in committing the offence of cheating. In its
most basic form, deception entails persuading someone to believe what is untrue to be true
while disbelieving what is true to be false, either by explicit words or conduct. Another thing
to keep in mind is that the definition of deception under Section 415 of the IPC includes
dishonest7 concealing of facts as deception. Cheating is defined as deception combined with
fraud or dishonest intents.

The accused's intention is crucial in determining whether or not the offence of cheating has
been committed. The major distinction between a criminal and a civil cause of action is one
of intent. If the accused acts knowingly and willfully in order to induce the other person, he
or she may be found criminally responsible. If the accused acts after the issue has arisen and
has not pre-planned his behaviour purposefully, he will be held civilly accountable. 8 In other
words, the intention of the accused must be dishonest at the time of making the promise.9

Suraj had dishonest intents from the start when he established the advert, based on the
circumstances of the case. In his ad, he guaranteed prospective students that they would pass
their law examinations from his course with flying colours, and he charged a hefty fee for this
service. Finally, his course consisted of printed pages with general suggestions like reading
the problems thoroughly, or discussing them with friends, etc. The fact that he promoted his
course in such a way as to lead people to assume he was delivering unique methods to
passing the test reveals his dishonest intents to deceive others by giving them broad
information instead. The words "sure success" indicate that this is a dishonest goal. "Sure
Success" cannot be guaranteed in an examination for law students based on general advice to
work hard. This was not a mere breach of contract. Here, the charge of cheating is established
because at the time when the transaction was entered into, Suraj had a dishonest intention to
cause wrongful loss to the students by inducing them to part with their property on a promise
which he knew to be false.10

Furthermore, Suraj has partially admitted guilt on his part when he states that no criminal
action can be taken against him and that he is only liable under civil law, implying that he is

7
Indian Penal Code, 1860, §24, No. 45, Acts of Parliament, 1860 (India).
8
Nageshwar Prasad Sinha v. Narayan Singh, AIR 1999 SC 1480.
9
Shyam Sundar Gupta v. State of Uttar Pradesh, (1985) Cr LJ 1674 (All).
10
Mahadeo Prasad v. State of West Bengal, AIR 1954 SC 724.
aware that he deceived others through the advertisement but does not believe it is enough to
warrant criminal action. This also proves the second crucial ingredient: there was a dishonest
inducement to deliver property to any person.

The issue here stems from the code's definition of "property," and whether property includes
money claims, which would be considered cheating. We might deduce from the case of
Rajesh Bajaj v. State NCT of Delhi 11 that money claims are also considered cheating and fall
within the scope of property under this legislation. Furthermore, in the case of K R Kumaran
v State of Kerala,12 a patient was admitted to a hospital with the knowledge that he would die.
As a result of this, the doctor connived with another individual to obtain life insurance for
him and certified him well and healthy. This was done in order to collect insurance proceeds
after his death. The court found them guilty of deceiving and cheating the insurance company
in order to acquire money. As a result, monetary loss is unquestionably considered property
damage. As a result, this requirement is met, as Suraj defrauded the general public into
delivering money to him for his classes.

The third element is also satisfied in this case, as stated in the facts of the case, which declare
that "they would not have parted with the money had they not been deceived to do so due to
the advertisement." As a result, they were coerced into doing something they would not have
done otherwise.

Finally, the fourth component is met since such a conduct produced injury in the form of
losing money for a bogus class, which falls within the concept of losing property, resulting in
property harm.

Furthermore, Suraj had dishonestly convinced the persons to transfer him property in the
form of money that would constitute as valuable security under Section 420, as may be
shown from the circumstances of the case. As a result, he should be found guilty and
punished with imprisonment of either description for a term which may extend to seven
years, and shall also be liable to fine.

11
Rajesh Bajaj v. State NCT of Delhi, (1999) 3 SCC 259.
12
K R Kumaran v State of Kerala, 1961 CriLJ 98.
CONCLUSION

Therefore, there is a case to be made for criminal culpability in this scenario since it has all of
the necessary elements to form the offence of cheating under Section 415 of the IPC. Suraj
would also face a seven-year jail sentence as well as a fine under Section 420 of the Indian
Penal Code.