Articles by "Criminal Law"


Public Servants be Prosecuted without Sanction u/s 197 CrPC

Relevant constitutional court rulings pertaining Section 197 of Cr.P.C. is quoted as under:-

1. The Hon'ble Apex Court in the case of Bakhshish Singh Brar Vs. Gurmej Kaur and another reported in (1987) 4 SCC 663 has held as under :-

    "6.........It is necessary to protect the public servants in the discharge of their duties. They must be made immune from being harassed in criminal proceedings and prosecution, that is the rationale behind Section. 196 and 197 of the Criminal Procedure Code. But it is equally important that rights of the citizens should be protected and no excesses should be permitted. "Encounter death" has become too common. In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit." 

2. That further in another case Prakash Singh Badal Vs. State of Punjab reported in 2007(1) SCC 1 the Hon'ble Apex Court has also held as under:-

    "20..  The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity." 

3. The Hon'ble Apex Court in the Case of Subramanian Swamy Vs. Manmohan Singh and Another reported in (2012) 3 SCC 64 the Hon'ble Apex Court has held as under :-

    "74......................Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. However, the said protection against malicious prosecution which was extended in public interest cannot become a shield to protect corrupt officials. These provisions being exceptions to the equality provision of Article 14 are analogous to provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption." 

4. That on careful reading of the above cited judgments of the Hon'ble Apex Court it is manifested that Section 197 of the Cr.P.C. intends to protect public servant from harassment. It protects public servant from any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. Further, its operation has to be limited to those duties which are discharged in the course of their duties and once any act or omission found to have been committed by any public servant in the discharge of their duties, then it must only be given liberal and vide construction, so far its official nature is concerned.

5. Further, in the Case of Inspector of Police and Another Vs. Battenapatla Venkata Ratnam and Another reported in (2015) 13 SCC 87 the Hon'ble Apex Court while reiterating the judgment in the case of Sambhoo Nath Mishra Vs. State of U.P. and others reported in (1997) 5 SCC 326 and Rajib Ranjan and others Vs. R. Vijaykumar reported in (2015) 1 SCC 513 in paras 9 and 11 has held as under:-

    "9..  In a recent decision in Rajib Ranjan and others v. R. Vijaykumar (2015) 1 SCC 513, at para 18, this Court has taken the view that "18........ even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted". 

6. That the clearly evident on the very face of record presented to this hon'ble court the alleged indulgence of the police officers in cheating, fabrication of records cannot be said to be in discharge of their official duty. Their official duty is not to fabricate records.

7. That further, the Supreme Court in case of State of Uttar Pradesh Vs. Paras Nath Singh {(2009) 6 SCC 372} has examined the expression discharge of official duty. It further reiterated the case of B. Saha V. M.S. Kochar {(1979) 4 SCC 177} wherein it is held as under:

    "6.. XXX XXX XXX 

    11.. Such being the nature of the provision, the question is how should the expression, 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty', be understood? What does it mean? 'Official' according to dictionary, means pertaining to an office, and official act or official duty means an act or duty done by an officer in his official capacity. In B. Saha and Ors. v. M. S. Kochar (1979 (4) SCC 

    177) it was held: (SCC pp. 184-85 para 17) 

    17.. The words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, 'it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an Act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and the said provision."(emphasis in original) Use of the expression 'official duty' implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of his official duty." 

15.. The Court further reiterated the view taken in the cases of State of Kerala Vs. V. Padmanabhan Nair {(1999) 5 SCC 690}, Amrik Singh V. State of Pepsu (AIR 1955 SC 309) and Shreekantiah Ramayya Munipalli V. State of Bombay (AIR 1955 SC 287) and has held that the offence under Sections 467, 468 and 471 IPC relate to forgery of valuable security, Will etc; forgery for purpose of cheating and using as genuine a forged document respectively. It is no part of the duty of a public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences. Want of sanction under Section 197 of the Code is, therefore, no bar.

8. Further in the case of Prakash Singh Badal (supra) in the context of Section 420, 467, 468, 471& 120-B, the court has laid down the principle about necessity of sanction under section 197 of Cr.P.C.

    "The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence." 

9. hat in the case of Devinder Singh & others Vs. State of Punjab {(2016) 12 SCC 87} it has laid down the principle as under:

    "39.. The principles emerging from the aforesaid decisions are summarized hereunder : 

    39.1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime. 

    39.2 Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner. 39.3 Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under section 197 Cr.P.C. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor it is possible to lay down such rule. 

    39.4 In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply. 

    39.5 In case sanction is necessary it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority. 

    39.6 Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of Court at a later stage, finding to that effect is permissible and such a plea can be taken first time before appellate Court. It may arise at inception itself. There is no requirement that accused must wait till charges are framed. 39.7. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage. 

39.8. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to accused to place material during the course of trial for showing what his duty was. The accused has the right to lead evidence in support of his case on merits. 

10. That after reading of the above, it is found that if the allegation against the public servant is for the offence of cheating, fabrication, misappropriation of record and also it allegation of criminal conspiracy are leveled then there is no need of sanction at earlier stage and it could be taken up at the stage of trial. 

How to Draft Specimen of Documented Arguments for Criminal Revision before Sessions Judge?

Given below is an example or specimen of  written arguments for Criminal Revision before Sessions Judge:

Infographics showing Written Arguments for Criminal Revision before Sessions Judge Court Sample


Before the Court of the Hon’ble Sessions / District Judge at Lalaha (PC 7)

                               Revision Petition No. 297 of 2021

                                         Documented Arguments


                                                CC No. 3077 of 2019


In the matter of:

**** s/o OR d/o  Shri D******

Aged about __ years, Occ.: ___

Add: ________________

__________________________________________                  ...… Petitioner


1. _____ s/o Unknown, Occ. Dy SP (Police), Sahaha __

R/o Sahaha

2. ______ s/o Unknown, Occ. Dy SP (Police), Gazaha __

R/o Gazaha

3. __________ s/o Unknown, Occ. Private Company Worker / Govt Servant

R/o Gazaha

                                                                                                         .….. Respondent




The petitioner prays to present the following arguments before the hon’ble Court:


The petitioner used to work with ___________ where the accused no. 3 also used to work and hence got acquainted with him during the year 20__ -20__.

After leaving the job accused no. 3 still sometimes used to call and meet the petitioner.

In the year 2017 accused no. 3 started harassing the petitioner by asking him to join his gang of criminals involved in making fake claims from health insurance companies being organized by his handler accused no. 1.

The petitioner denied, yet accused no. 3 continued harassing by making phone calls and also met the petitioner in Lalaha in this regard.

The accused no. 3 tried convincing the petitioner that the work under the gang is safe as accused no. 1 is with him and also showed a duplicate voter ID issued in his name on the address of JJ colony in Delhi.

Accused no. 3 also showed a receipt of a passport with his fake ID which he could not collect and told that all these are being arranged by accused no. 1.

Accused no. 3 started hurling abuses on phone and issuing threats claiming that his master accused no. 1 has ordered him to tell the petitioner that if he does not join the gang then he will be executed in a fake encounter.

The petitioner filed a complaint against this harassment on IGRS portal which was forwarded to Gazaha police to which a sub-inspector replied stating he has talked to both the parties and no one will call each other. Despite this, accused no. 3 kept calling on phone and issuing threats. (copy of sub inspector response attached with the petition)

Petitioner filed another complaint on the government portal, and now the complaint was not handled by the sub-inspector but directly by the Circle Officer, Gazaha i.e. accused no. 1. This time accused no. 1 responded saying that the complainant has taken money from the accused that is why he is calling him.

Now the petitioner filed a complaint again stating if he really owes any money to the accused then he must take legal action and not make threatening calls and hurl abuses. Now this time accused no. 1 again changed his stance saying that the accused is not calling the complainant but complainant himself calling the accused and seeking Rs. ____ else he will make fake police complaints. (copy of accused no. 1’s response attached with the petition)

It is also astonishing that if someone even owes money to anyone they are not entitled to issue threats and hurl abuses but must follow proper legal procedure. And despite being a police officer accused no. 1 closed the complaint by his absurd stance on record and allowed the accused no. 3 to commit crimes of issuing threats and abuses.

Also, to this stance of the accused no. 1 now the petitioner dared him to lodge an FIR against him and take legal action, and asked why he is only closing the complaints just like that. And also, now when he knows that the complainant himself is illegally trying to extract Rs. _____ from the accused and also threatening him to make fake police complaints it is a serious crime. Now, it is prime duty of the accused no. 1 being a Circle Officer of police to lodge an FIR (First Information Report) against the complainant himself and put him behind the bars.

The petitioner also asked him to take out telecom operator records before they expire to establish the fact whether accused is calling the complainant or complainant is calling the accused, else it will be ‘destruction and concealment of evidence’. This would also prove if complainant is seeking Rs. ___ from the accused no. 3 or not, as if he is seeking then the telecom operator records must show that the complainant is making outcalls to the accused no. 3 and not that accused no. 3 is always making calls to the complainant. 

Now, despite mentioning in the complaint that evasion of telecom operator records will be treated as punishable offence of destruction and concealment of evidence as under the IPC, the accused no. 1 never took telecom operator records on file and let the evidence elapse, and summarily evaded telecom operator records in his actions and responses.

The accused forged the government records every time he got a chance and persisted with his stances despite after several complaints and notices and provided all chances to the accused no. 3 to issue threats under his absolute guidance, control and protection.

The accused no. 1 also created forge police records via his reports dated 01.02.__, 31.12.__ and other responses as well by stating that according to his findings the complainant was doing bad work and was expelled from the company where he was working with accused no. 3, and that he has always been asking money from him. The fact is that the complainant himself left the company due to health conditions and the company duly accepted his resignation letter. The company has only issued him letter of commendations for the good work he had done there and was always praised there are only good records of the petitioner in the company and there can be no chance that out of nowhere accused no. 1 findings can find him bad and expelled from the company. 

Now, to save his skin the accused no. 3 in response to the complaint forwarded to him by the State Human Rights Commission uses the term ‘due to his busy schedule’. 

Now while saying ‘due to his busy schedule’ he still does not apologize or accepts his fault yet claims that the complainant was not picking up his calls and the address given by the complainant does not exist. Still he does not bring any evidence to back his claim that the complainant was not picking up his calls, and regarding his stance that the ‘address does not exist’ is also a lie. To prove that the address does not exist he claims that:

i. He sent a person called Athhu from Gazaha to meet the complainant but he could not find the address.

ii. He sent local police who also informed him that the address does not exist.

The fact is there was no such call from accused no. 1 and the address also very much exists and when the complaint was forwarded to the same local police by the CJM court, the local police well found it and met the petitioner and furnished its report to the CJM court. Besides this, all correspondences of the petitioner always reach the same address and many people live at the same address in the building and nearby areas who use the same building address.

The petitioner’s complaint was dealt by accused no. 2 who also fully cooperated with accused no. 1 and created a forged police report dated January 20__ upholding the same stance of the accused no. 1 meticulously, calmly and very clearly, as his report shows. The report of accused no. 2 is merely a copy of the report of accused no. 1 under his own endorsement, paving the way to protect the accused no. 1 and 3 and endangering life of the petitioner. As accused no. 1 subconsciously adds an expression ‘due to he being busy’ which his psychology is naturally encouraging him to do so, so as it may be used as a protection or excuse of his crimes. But here we see accused no. 2 also upholds the same thing. The petitioner assumes while committing crimes this gang has always reasons.

Now when the Lalaha local police says that the matter is of Gazaha when the petitioner worked with the accused no. 3, it must know that if accused no. 3 asked the Lalaha local police to find the address of the complainant in the past, the matter is of Lalaha itself under one and all circumstances.

Besides the previous complaints made online also show the response of accused no. 1 that the ‘complainant was expelled from the company’ this expression itself means that the accused had already worked and left the company there and is not there now. And now, when the matter is going on now and the address given is always of Lalaha, the crime against the petitioner is deemed to have taken place in Lalaha only.

Besides, when the Lalaha local police met the petitioner to handle the complaint forwarded to them by the CJM court, the petitioner clearly told them that the accused no. 3 met him in areas around Cantt. Road, Lalaha twice on behalf of his handler accused no. 1, and issued threats. While over the phone the tone was much harsher with filthier abuses. And as the accused no. 3 has also met the petitioner on behalf of the accused no. 1 and issued threats the crime place is Lalaha only, and hence Lalaha jurisdiction. Thus, this seems to be a great ploy where the accused no. 1 under his influence might be trying to somehow bring the petitioner to the areas of his control where he can easily create a fake encounter as he threatened through his handled accused no. 3.

The impugned order dated 07/10/20__ by the CJM court is based on the local Lalaha police’s bogus report which says matter is of Gazaha and on the assumption that the entire episodes occurred in Gazaha while the petitioner was working there merely as the petitioner gave introduction as how he got acquainted with the accused, while the records show the matter is of Lalaha under all considerations.

In the light of the criminal revision petition and the above arguments the petitioner hereby prays this Hon’ble court:

i. Set the impugned order aside, and order filing a complaint against the accused under CrPC 200 or order the state to lodge a report against the accused and carry out proceedings.

ii. Order any other remedy to the petitioner, and penable measures against the accused no. 1, 2 and 3.







First Instance Judgment in the Rape Case of Li XX and others in China

The highly-regarded rape case of Li Moumou and others was sentenced in the Haidian District Court of Beijing this morning of September 26. The court sentenced the defendant Li Moumou to 10 years in prison for rape.

Adult 12 years imprisonment, deprivation of political rights for 2 years

 Wei XX (brother) fixed-term imprisonment of 4 years

 Zhang XX fixed-term imprisonment of 3 years, suspended for 5 years; Wei XX (brother) fixed-term imprisonment of 3 years, suspended for 3 year.

The following is the full text of the judgment of Haidian Court:


   1. Facts ascertained by the trial

At about 0:00 on February 17, 2013, the defendants Li Moumou, Wang Moumou, Wei Moumou (brother), Zhang Moumou, Wei Moumou (brother) and Li Mo went to Chengfu Road, Haidian District. This city Drinking and consumption in the "Scorpio" private room of the night bar in Beijing. The bar waiter surnamed Zhang arranged for the victim Yang Moumou and Xu Moumou to drink, sing, and play games together in the private room.

At about 3:30 in the morning, Yang Moumou was supported by a waiter surnamed Zhang to walk out of the private room with Li Moumou and others.


   At this time, Yang XX was unable to walk normally and was in a drunk state. Yang Moumou, accompanied by a waiter surnamed Zhang, boarded a black Audi 07 off-road vehicle driven by Wei Moumou (brother), and arrived at the Jindingxuan restaurant in Jinyuan Times Shopping Center in Haidian District. 

Soon after they were seated, Li and others had disputes with other customers over trivial matters, and were persuaded to leave the restaurant after being persuaded to open.

Yang followed to leave the restaurant and boarded the Audi off-road vehicle driven by Wei XX (brother) with the waiter named Zhang. Li Moumou, Wei Moumou (brother), and Li Mou drove to the underground garage of Renji Villa in Haidian District to meet.

Later, Li and the waiter surnamed Zhang left first for some reason, and the others took the Audi off-road vehicle driven by Wei (brother) to leave into the Jishan Villa.


   In the car, Wei XX (brother) is in the passenger seat, and from left to right in the back row are Zhang XX, Li XX, Yang XX, and Wang XX. 

On the way, Yang found that the waiter surnamed Zhang was not there, so he asked to get off and leave, shouting, kicking and struggling after being rejected. Li Moumou, Wang Moumou, Zhang Moumou and others then forcibly suppressed and controlled Yang Moumou. Li XX repeatedly slapped Yang on the face, and Wang also beat Yang XX.


   around 5:50 in the morning. The five defendants took Yang XX to the Hubei Building in Haidian District. Wei Moumou (brother) and Zhang Moumou got off the car first to the hotel front desk.

Wei Moumou (brother) checked in using other people's ID cards and entered the hotel room with Zhang Moumou first. Then Li, Wang and Wei (brother) led Yang to enter the elevator through the hotel lobby. 

During this period, Li held Yang's right arm tightly with his left hand, pinching Yang forward, and Wang assisted in control on Yang's left side.

 In the elevator, Li You slapped Yang's head in facial movements. After exiting the elevator, Yang was dragged into the hotel room by Li. Li Moumou and others asked Yang to take off his clothes, but Yang refused, so Li, Wang and others slapped and kicked Yang and forcibly took off Yang’s clothes. 

Subsequently, Li Moumou, Wang Moumou, Wei Moumou (brother), Zhang Moumou (brother) and Wei Moumou (brother) forcibly had sex with Yang Moumou in turn.

During the period, some defendants committed obscene acts. Later Li Moumou and Wei Moumou (brother) gave 2,000 yuan to Yang Moumou. 

At about 7:30, the five defendants took Yang Moumou away from the Hubei Building and put Yang down on the way.


   On February 17 and 18, Yang went to Beijing Jinghua Friendship Hospital and Peking University Third Hospital successively, and was diagnosed with head and face trauma, concussion, etc.

On February 19, Yang XX, accompanied by others, went to the public security organ to report the case. 

Appraised by the judicial appraisal department according to law, Yang Moumou saw flaky subcutaneous hemorrhage on the upper left eyelid


(Absorption period), flaky subcutaneous hemorrhage in the back of the nose (absorption period, size of 2 cm x 2 cm), flaky subcutaneous hemorrhage in the left temporal and left zygomatic area (absorption period, size of 6 cm x 3 cm), physical injury The degree is a minor injury.


   On February 21st, 1 attached Xu, Li XX, Wang XX, Wei XX (brother), and Wei XX (brother) were arrested by the public security organs. At 2 o'clock that day, with the assistance of Wei XX (brother), the public security organs captured Zhang XX.


   2. Facts of the allegations and convictions

  The objective manifestation of the crime of rape is the use of violence, coercion or other means to force sexual intercourse with a woman, and what it violates is the right of women to determine sexual behavior according to their own will. 

Therefore, the willingness of the victim is a key element in judging the conviction of rape. 

Throughout this case, the contact between the defendant and the victim began at the bar at midnight on February 17 at midnight, and ended at about 7:30 on the same day when he left the Hubei Building. 

He experienced three stages of drinking at the bar, looking for a hotel, and committing rape. In the first stage, the victim and the defendant drank, sang, and played games. 

By the time they left the bar at about 3:30, the victim was in a state of drunkenness and needed assistance to walk. There is no evidence that anyone asked the victim if he agreed to "launch." 

Therefore, it cannot be determined that the victim followed the crowd to leave the bar to eat out is to agree to "promulgation".

 From the defendant's dispute with others at Jindingxuan to the bar waiter named Zhang left into the Jishanzhuang, the victim was able to walk on his own, but in the process, there was no evidence.

It is confirmed that one of the defendants indicated to the victim the intention of having sex. In the second stage, the five defendants took the victim to search for the hotel. 

On the way, the victim found that the waiter surnamed Zhang was absent and asked to get off the bus. After being refused, he shouted and struggled, but was accused and beaten by Li XX and Wang XX. In a state of "cannot resist". In the third stage, the victim was held hostage to the Hubei Building. Before getting off the vehicle, he was threatened by Li and others. 

After getting off the vehicle, he was pulled forward by Li and Wang, passing through the lobby and entering the elevator until he reached the hotel room.


   Surveillance video showed that the victim was dragged and slapped. There was no “voluntary” behavior in his posture. In the hotel room, the victim was beaten again because he refused to undress. He was in a state of “dare not to resist” and was later gang-raped. 

The facts of this case show that the defendants Li Moumou, Wang Moumou, Wei Moumou (brother), Zhang Moumou, and Wei Moumou (brother) violated women's will and jointly used violent means to rape women, and their actions constituted the crime of rape.

 The facts that the People’s Procuratorate of Haidian District of Beijing charged the defendants Li, Wang, Wei (brother), Zhang, and Wei (brother) of rape are clear, the evidence is indeed sufficient, and the charges are convicted. 

The actions of the five defendants were gang rapes, which caused physical and psychological harm to the victims. They were of a bad nature and caused great social harm and should be punished according to law.


   3. Combining evidence to evaluate the defense opinions

The defense and defense opinions of the defendant, legal representative, and defender on the facts of the case, the crime and innocence, and the severity of the crime can be summarized into the following four points:

 1. Whether there is illegal evidence 

2. Whether the five defendants and the victim Sexual relations have occurred

 3. Whether the defendant has committed violence to the victim

 4. Whether the defendant has had a sexual relationship with the victim, and whether it is against the wishes of the victim.


In response to the defense’s request for the exclusion of illegal evidence, our court found that the five defendant's

Criminal Law, China: Chinese Rape Cases
Criminal Law

confessions during the investigation stage had synchronized video recording certificates, and the legal representatives or adult relatives were present and signed for confirmation when the minor defendants confessed.

 The investigative agency’s procedures for obtaining evidence are legal, and there is no illegal evidence collection such as torture.

As for investigators’ quoting of legal provisions, explaining policies, generalizing statements, clarifying facts, and other sentences during the interrogation process, they are not extortion or inducement. 

There is no reason for the exclusion of illegal evidence in this case, so the defense's application for exclusion of illegal evidence is not supported. 

Regarding the defense's application to view the synchronized video data of the defendant's confession that was not presented in court, our court believes that the content of the application does not fall within the scope of examination for the exclusion of illegal evidence, and there is no need to extract it for examination.


   The evidence in this case is sufficient to prove that all the five defendants had sex with the victim. 

(1) The victim Yang Moumou made multiple statements clearly alleging that the five defendants had sexual relations with him.

 (2) The physical evidence appraisal report confirmed that the mixed semen spots of Wei (brother) and Wang were detected in multiple places on the victim's underwear. 

(3) Li's testimony confirmed that Li described the fact that the five defendants gang-raped the victim on the phone after the incident. This plot was also confirmed by Wei's (brother) confession in court. 

(4) The five defendants all confessed to seeing other co-defendants having sex with the victim during the investigation stage, and some of the defendants acted indecently. 

The guilty confessions of the five defendants presented by the public prosecution agency were clear and specific in content, not only corroborating each other, but also consistent with other evidence, and were sufficient for determination. 

Regarding the opinion of the defendant Li Moumou and his defender in court that Li Moumou did not have sexual relations with the victim, our court believes that although the investigative agency did not detect Li Moumou's semen speckles from the victim’s underwear.

But combined with other defendants’ confession and evidence in court, the victim’s statement, and the description of the facts that the witness Li heard from Li’s mouth, it clearly and stably proved the fact that Li was the first to have sex with the victim. And the guilty confession in the investigative stage is mutually corroborated, which is sufficient to confirm. 

Li Moumou's defense that he "fell asleep shortly after entering the room and did not have sex with the victim" did not match the evidence in the case and our court rejected it.


   The evidence in this case is sufficient to prove that multiple defendants jointly committed violence to the victim Yang XX. (1) The victim stated that he was pressed and assaulted by Li Moumou, Wang Moumou and others in the car, was pulled by Li Moumou while going to the hotel room, and was beaten by multiple defendants in the room. Among them, Li whipped his head and face several times, Wang kicked his head, and was forcibly stripped naked by several defendants. 

(2) The surveillance video of Hubei Building showed that when passing through the lobby, the victim was not holding Li Moumou, but while Li Moumou held his right arm and pulled it forward, while Wang Moou held his left side on the other side. Arm, in line with the characteristics of the forced state: In the elevator, when Li Moumou slapped the victim's head and face, he raised his hand and paused before shooting. 

This is a violent act: Li Moumou was in the process of walking to the room. When the victim leaned backward and did not want to move forward, he made obvious pulling actions. 

(3) Witnesses such as Song and Yue confirmed that they saw injuries on the victim's face afterwards: The testimony and diagnosis certificate of the doctor from Peking University Third Hospital confirmed that the victim had bruises on his face when he went to see a doctor, and the consequences confirmed the victim's statement The fact of being beaten and raped.

 (4) Combining the victim's injury photos, public security forensic examination and identification report analysis, it can be ruled out that it was caused by another person's or self-attack afterwards, and it can be determined that the victim's injury was caused by the defendant in this case.

 (5) The witness Li certifies that after the incident, Li told him that he had beaten the victim.

 (6) On the way to find the hotel, Li and Wang sat on both sides of the victim. At that time, the victim struggled fiercely, and there was a strong reaction from kicking the driver. The two defendants exercised strong control over the victim. 

Most of the defendants had confessed that Li and Wang had performed violent acts such as slaps, kicks and kicks on the victims. Zhang Moumou and Wei Moumou (brother) once confessed to seeing the victim had redness and swelling on his face after being beaten. 

The above confession not only confirms each other, but also basically coincides with the victim's statement. There is objective evidence to support it, which is sufficient to confirm.


   The evidence in this case is sufficient to prove that the defendant’s sexual relations with the victim violated the victim’s true wishes.

(1) The victim clearly stated on many occasions that he was unwilling to open a room with the five defendants. 

On the way to the hotel, during the process of getting off the car and entering the room, and in the hotel room, he asked the other party to let him leave. 

(2) The surveillance video showed that the victim was dragged into the hotel lobby, elevator and walked to the room. 

He leaned backwards in the corridor and did not want to go forward, which confirmed the victim's statement.

 (3) The confessions of the five defendants, the testimony of the waiter surnamed Zhang, Mr. Li and the bar surveillance video showed that the victim was drunk when he walked out of the bar room. He found that the waiter surnamed Zhang had a huge contrast in his behavior after leaving, which confirmed his unwillingness to be alone with him. The mentality of the five defendants traveling.

 (4) The defendants have all confessed to the fact that in the hotel room, the victim was unwilling to undress and was forcibly undressed after hiding in a corner.

 (5) The action of the victim hitting the TV cabinet or wall with his head is in line with the response characteristics after being forced to have sex.

 (6) Li’s testimony proved that when he asked the victim afterwards whether he was willing to have sexual relations, Li said, “If you don’t let it go,” he also said that Wang and others beat the victim. 

Combining the above facts, it is sufficient to prove that the victim has a subjective state of will for sexual relations against his will.


   Regarding the defense's claim that the victim was autonomous and willing to follow several defendants, and the subjective mentality of seduce minor defendants, proactively "promulgated", and voluntarily have sex with the defendant, our court believes that there is a lack of evidence support. 

There is no evidence that the victim had a clear intention to agree to have sex with the five defendants. As for whether the victim and the bar staff contacted Li's family, it was a post-event behavior and did not affect the subjective will of the victim at the time of the incident. Identified. 

"Accompanying wine" and prostitution belong to two different types of behavior, and there is no necessary connection between the behavior of accompanying wine and prostitution. Women have equal sexual rights. 

When they are reluctant, any use of force to force sexual relations is a rape against their will. Identity or personal living habits are not sufficient to infer the subjective mentality of the behavior. 

Therefore, the defense uses the victim's identity and life experience to presume his subjective mentality, which lacks objectivity.


   4. Sentencing opinions

In this case, the five defendants actively and directly committed adultery against the victim. Wei XX (brother), Zhang XX, and Wei XX (brother) did not only play a secondary or auxiliary role in the joint crime.

 The defense opinions of the three defendants being accomplices were not accepted by our court. However, the role of each defendant in a joint crime is indeed different. The court comprehensively considers the circumstances of the whole case and the specific circumstances of each defendant's crime. 

According to the criminal policy of both leniency and strictness, it is differentiated when sentencing.


   Defendant Li Moumou was the offender and the main violent perpetrator in the joint crime, and his status and role were obviously greater than that of other defendants, and he had no repentance.

 In view of the fact that at the time of the crime he had reached the age of 16 but not the age of 18, he was a minor school student, and based on the principle of education and correction in favor of minor criminals, he was given a lighter punishment according to law.


   Defendant Wang is the only adult among the five defendants. He is second only to Li in joint crimes. He is the main perpetrator of violent acts, and the violent acts hurt the victims more and are subjectively malignant.

 In view of the fact that he respected the defender's guilty defense opinions before the end of the court trial, he had certain regrets, and he could consider it when sentencing.


The defendant Wei XX (brother) drove a car and opened a house in the joint crime, and was an active perpetrator, but his role was smaller than that of the defendants Li XX and Wang XX. 

In view of the fact that he was 16 years old but not 18 years old at the time of the crime, he is a minor school student.

 After arriving in the case, he actively assisted the public security organs in arresting the accomplices. 

He has made meritorious deeds: He has a good attitude of pleading guilty and can apologize to the victim in court and sincerely repent. 

Actively compensate the victims for their damages, and the victims also recommend that they be given a lighter punishment. 

Therefore, in accordance with the principle of education and correction in favor of juvenile offenders, the punishment shall be reduced in accordance with the law.

   Defendant Zhang Moumou mainly followed other defendants in the joint crime, and had shown mercy to the victim, and his effect was relatively smaller than the first three defendants. 

In view of the fact that he was 16 years old but not 18 years old at the time of the crime, he is a minor school student: he can truthfully confess his and his co-convict's main crimes after arriving in the case and in the court trial, and he has a good guilty plea attitude. Take the lead in paying compensation and before the court. Proactively write an apology letter to the victim, apologize to the victim in court, and actively compensate the victim for his losses. 

The repentance is obvious. The victim also recommends a lighter punishment: and his usual performance is good, subjectively malignant and personal danger is small, so it is beneficial to the principle of education and correction for juvenile offenders shall be mitigated in accordance with the law and suspended sentences shall be applied.

The defendant Wei Moumou (brother) mainly followed other defendants in the joint crime, did not directly commit violence to the victim, and had shown mercy to the victim, which was less effective than the other defendants. 

Given that he had committed fourteen at the time of the crime he is the youngest underage student who is under the age of 16, and is the youngest school student in this case.

 He can basically confess his crimes truthfully after arriving in the case and during the court trial, with a good confession attitude: Able to apologize to the victim in court and actively compensate the victim for his losses. 

The victim is also recommended to be punished lightly if he has a performance of repentance: and his previous performance is good, subjectively malignant and personal danger is small, so in line with the principle of education and correction in favor of juvenile offenders, he shall be given a lighter punishment according to law, and shall apply probation.

  Combine the above opinions. In accordance with the relevant provisions of the Criminal Law, the court sentenced defendant Li Moumou to 10 years imprisonment for rape. 

The court sentenced defendant Wang Moumou to 12 years imprisonment, deprived of political rights for two years: sentenced defendant Wei Moumou (brother) to fixed-term imprisonment of four years.

The defendant Zhang XX was sentenced to three years imprisonment with a five-year probation; the defendant Wei XX (brother) was sentenced to three years imprisonment with a three-year probation.

   When the sentence was pronounced, our court informed the right of appeal according to law. After the verdict was pronounced, the collegiate panel gave the defendant a post-sentence interpretation and court education based on the verdict and the circumstances of the trial, and arranged a family meeting between the minor defendant and his relatives.


  1. China Rape cases studies
  2. Rape of Minor Girl China


Judicial Interpretation of the Supreme Court Rape Case, China

From a broad perspective of society, any act in which one party uses violence or threats to force the other party to have sex with him is considered rape (that is, if a woman forces a man to have sex with him, it is also rape in the eyes of most people). When the victim is unable to refuse to have sex because of alcohol, drugs, or religious influence, having sex with him is also considered rape. Women who abet and help men rape women can also become accomplices in the crime of rape.


Q. What are the judicial interpretations of rape?

Ans. The Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security "Answers to Several Questions Concerning the Specific Application of Law in the Current Handling of Rape Cases" (1984.4.26 [1984] Fa Yan Zi No. 7)


1. How to determine the crime of rape?

The crime of rape refers to the act of forcibly having sexual intercourse against a woman by violence, coercion or other means.


Knowing that a woman is a mentally ill person or a person with dementia (to a serious degree) and has sex with her, no matter what methods the criminals take, they should be punished as rape. 

Sexual behavior with a patient with intermittent mental illness during the period before the onset of the disease does not constitute the crime of rape if the woman agrees.


When determining whether it is against the will of a woman, it cannot be divided by the style of the victimized woman.


Forcing a woman who has sex with a woman with a bad style should also be convicted of rape.


The determination of rape cannot be based on whether the victimized woman has shown resistance as a necessary condition. 

For women who have not made any expressions of resistance, or the expressions of resistance are not obvious, specific analysis and careful distinction should be made.


2. How to identify the violence, coercion and other means in the crime of rape?

"Violent means" refers to the methods that criminals directly use against the victim by beating, binding, choking, or pressing down, etc. that endanger personal safety or personal freedom and make women irresistible.


"Coercive means" refers to the means used by criminals to threaten and intimidate the victimized woman to achieve mental coercion. Such as: threatening to retaliate, expose privacy, and harm relatives.


Use superstitions to intimidate and deceive, and use parenting, affiliation, power, and isolation and helpless environmental conditions to coerce, persecute, etc., to force women to endure humiliation and surrender, and dare not resist.


Cultivation, affiliation, and use of power to have sex with women cannot all be regarded as rape. 

The perpetrator used the specific relationship between him and the victim to force submission, such as the elder father used to torture or deduct the living expenses to force the elder to tolerate the adultery, or the perpetrator used his power to take advantage of the danger to adulterate the woman. Both constitute rape.

 The perpetrator used his power to lure the woman, and if the woman used each other to have sex with him, it would not be a crime of rape.

 For those who have used their power to rape many women and the circumstances are bad, they can be sentenced to hooliganism.


"Other means" refers to criminal elements using means other than violence and coercion to make the victim women irresistible. 

For example: using the opportunity of a woman to be seriously ill and sleeping to commit adultery. Using drunkenness, drug anesthesia, and using or counterfeiting to treat diseases.


3. What crime and non-crime, and the boundary between this crime and technical crime should be strictly distinguished when handling rape cases?

1. Make a distinction between rape and unmarried sexual misconduct that unmarried men and women commit voluntarily in the course of love.


2. How to distinguish between rape and adultery?

 To be careful of:

(1) Some women commit adultery with others, and once they turn their faces, their relationship deteriorates, or after the matter is exposed, they fear losing face, or shirk responsibility or put blame on others, etc., who describe adultery as rape and cannot be criminalized as rape.


In handling the case, with regard to the so-called half-push and half-implementation issues, it is necessary to know the usual relationship between the two parties, the circumstances and circumstances under which the sexual behavior occurred, what was the attitude of the woman after the incident, and under what circumstances the facts and circumstances were reported.

Judicial Interpretation Chinese Rape Criminal Law, infographics

 A careful review and a thorough analysis are not against women's will, and it is generally not appropriate to be punished as rape. If it is against a woman’s will, he shall be punished with rape.


(2) The first sexual act violated the will of the woman, but it was not reported afterwards. Later, if the woman voluntarily had sex with the man many times, it is generally not appropriate to be punished as rape.


(3) After a criminal has raped a woman, he threatens the victim mentally, forcing him to continue to endure humiliation and submission, he shall be punished as rape.


(4) Both the man and the woman commit adultery at first, and then the woman is unwilling to commit adultery, and the man entangles and coerces him with violence or corrupt reputation. 

Forcibly having sex with the woman, he shall be punished as rape.


3. How to Distinguish between gang rape and messing about sex between men and women?

When some gangsters commit crimes, they both engage in messes between male and female gangsters and kidnap young women for rape. The latter should be convicted of rape.


4. How to penalize women who instigate or help men rape?

A woman who instigates or assists a man in committing a rape crime is a joint crime, and should be determined as an abettor or an accomplice according to her role in the rape crime, and be punished in accordance with the relevant provisions of the Criminal Law.

5. What is the judicial interpretation of rape by the Chinese Supreme Court?

"In order to punish the crime of rape in accordance with the law, according to the relevant provisions of the Criminal Law, the judicial interpretation of the crime of rape by the Supreme Court is as follows:

Article 17 and Article 236, paragraph 2 of the Criminal Law

For a person who has reached the age of 14 but not the age of 16, who has sex with an underage girl constitutes a crime, he shall be convicted and punished for rape in accordance with the provisions of Article 17 and Article 236, paragraph 2 of the Criminal Law.

 Sexual relationships are not considered a crime if the circumstances are minor and have not caused serious consequences.

If the perpetrator has committed both the rape of women and the rape of an underage girl, he shall be punished severely for rape in accordance with the provisions of Article 236 of the Criminal Law.

What is the judicial interpretation of the Supreme Court's surrender and meritorious service?

"In order to correctly identify surrender and meritorious service, criminals who have surrendered or meritorious service shall be subject to penalties in accordance with the law, and the specific application of the law is explained as follows:

Article 1 According to the first paragraph of Article 67 of the Criminal Law:

After committing a crime, he voluntarily surrenders to the crime and truthfully confess his crime is to surrender.

(1) Automatic surrender means that the facts of the crime or the suspect has not been discovered by the judicial organ, or although the suspect has been discovered, but the suspect has not been interrogated or has not taken compulsory measures, take the initiative and directly report to the public security organ, the people’s procuratorate or The people's court surrendered.

Criminal suspects surrender to their unit, urban and rural grass-roots organizations, or other relevant persons in charge.

 The criminal suspect entrusts others to surrender to the case due to illness, injury, or in order to reduce the consequences of the crime, or surrender to the case by letter or power, the crime has not yet been judicially established.

The agency found that, only because of suspicious behavior, after being cross-examined and educated by the relevant organization or judicial agency, they voluntarily confessed their crimes. They fled after committing a crime, and voluntarily surrendered in the process of being wanted or pursued; after investigation, they are indeed ready to commit crimes. 

Or if they are caught by the public security organ while they are surrendering, they shall be deemed to have surrendered automatically.

It is not because the criminal suspect takes the initiative, but is persuaded and accompanied by relatives and friends to surrender; if the public security organ informs the suspect’s relatives or friends, or sends the criminal suspect to surrender after reporting the crime, it shall also be regarded as automatic surrender.

If a criminal suspect voluntarily surrendered and then fled, he shall not be deemed to have surrendered.

(2) A truthful confession of one's own crimes means that after the criminal suspect voluntarily surrendered to the crime, he truthfully confessed his main crime facts.

If a criminal suspect who has committed multiple crimes only truthfully confessed part of the crimes committed, only the act of truthfully confessing part of the crime is deemed to be surrendered.

In a joint crime case, the criminal suspect should not only truthfully confess his crimes, but also the known co-criminals, and the principal should confess the co-criminal facts known to other co-criminals before they can be deemed to have surrendered.

A criminal suspect who voluntarily surrenders and truthfully confessed his crime and then retracts his confession shall not be deemed to have surrendered; but if he can truthfully confess before the first instance judgment, he shall be deemed to have surrendered.

Article 2 According to the second paragraph of Article 67 of the Criminal Law, criminal suspects, defendants and sentenced criminals who have been subjected to compulsory measures shall truthfully confess crimes that the judicial organs have not yet grasped, and that they are not consistent with those already grasped or sentenced by the judicial organs. If the confirmed crimes belong to different kinds of crimes, surrender is considered.

Article 3 According to the first paragraph of Article 67 of the Criminal Law, criminals who surrender can be given a lighter or mitigated punishment; those who commit a lesser crime can be exempted from punishment. 

The specific determination of lighter, reduced or exempted punishment should be based on the severity of the crime and the specific circumstances of the surrender.

Article 4 Criminal suspects, defendants, and sentenced criminals who are subjected to compulsory measures may truthfully confess crimes that the judicial organ has not yet grasped, and which are of the same kind of crimes as those already grasped by the judicial organ or confirmed by the verdict, may be lightened as appropriate. 

Punishment: If the same kind of crimes truthfully confessed are more serious, they should generally be given a lighter punishment.

Article 5 According to the provisions of the first paragraph of Article 68 of the Criminal Law, criminals have reported and exposed other criminal acts after they arrived in the case, including criminals in joint crime cases who reported other crimes other than the co-criminal crimes, which were verified to be true. 

Provide important clues to the investigation of other cases, which are verified to be true.

 prevent others' criminal activities; assist judicial organs in arresting other criminal suspects (including co-convicts).

Those with other outstanding performances that are beneficial to the country and society should be deemed to have performed meritorious service.

Article 6 After the criminals in a joint crime case come to the case and expose the facts of the joint crime, they may be given a lighter punishment as appropriate.

Article 7 According to the provisions of the first paragraph of Article 68 of the Criminal Law, criminals have reported or exposed other people's major crimes, which are verified to be true, provide important clues for the detection of other major cases, which are verified to be true.

Prevent others from major criminal activities.

Assist judicial organs in arresting other major criminal suspects (including co-convicts).

Those who have made other major contributions to the country and society shall be deemed to have performed major meritorious service.

The standards for "major crimes", "major cases", and "major criminal suspects" mentioned in the preceding paragraph generally refer to criminal suspects or defendants who may be sentenced to life imprisonment or more or the case is in the province, autonomous region, municipality, or nationwide. There are situations such as greater influence.

The above is the judicial interpretation of the Supreme Court’s surrender and meritorious service. Hope you will be satisfied.

Whether the defendant who has surrendered or made meritorious service is to be punished with lenient punishment and the extent of the lenient punishment shall be considered by the facts of the crime, the nature of the crime, the circumstances of the crime, the harmful consequences, social influence, the defendant's subjective malignancy and personal danger, etc.

 Those who surrender should also consider the initiative to surrender, the timeliness and stability of the confession. Those who have done meritorious service should also consider the severity of the reported crime, the possible or sentenced penalties of the reported and exposed person, and the extent to which the clues provided can play a role in detecting the case or assisting in the arrest of other criminal suspects.


  Those who have surrendered or made meritorious services shall generally be given a lighter and mitigated punishment in accordance with the law. 

If the crime is less serious, the punishment may be exempted. In similar circumstances, the margin of leniency for defendants who have surrendered should be appropriately wider than defendants who have meritorious services.


Although there is a circumstance of surrender or meritorious service, but the circumstances of the crime are particularly bad, the consequences of the crime are particularly serious, the defendant is subjectively malignant, and the personal danger is high, or the person is prepared to surrender and meritorious service in order to evade the law or evade punishment before committing the crime. Leniency punishment.


According to the Supreme People’s Court’s judicial interpretation on surrender and meritorious service, if the defendant has a circumstance of surrender and meritorious service, as well as recidivism, drug recidivism and other statutory severe punishment circumstances, it is necessary to consider the specific circumstances of surrendering and meritorious service and the defendant’s circumstances. 

Subjective malignancy, personal danger and other factors shall be analyzed and judged comprehensively, and a leniency or severe punishment shall be determined. 

If the former crime of the repeat offender is a non-violent crime, he can generally be punished with leniency. If the former crime is a violent crime or the former and subsequent crimes are similar crimes, he may not be punished with leniency.


Under-age Girl Rape China


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