advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Wednesday, November 20, 2013

Sec. 90 and Sec. 376 of I.P.C. = Consent obtained by playing fraud to marry her and committed sexual intercourse and later refused to marry her amounts to Rape as her consent was obtained by playing fraud on her = State of U.P. ... Appellant VS. Naushad ... Respondent = Published in http://courtnic.nic.in/supremecourt/qrydisp.asp

Sec. 90 and Sec. 376 of I.P.C. = Consent obtained by playing fraud to marry her and committed sexual intercourse and later refused to marry her amounts to Rape as her consent was obtained by playing fraud on her = 

Section 375 of the IPC defines the offence of rape,
and enumerates six descriptions of the offence. 

The description
"secondly" speaks of rape "without her consent". 

Thus, sexual
intercourse by a man with a woman without her consent will constitute
the offence of rape. 

We have to examine as to whether in the present
case, the accused is guilty of the act of sexual intercourse with the
prosecutrix 'against her consent'. 

'How is 'consent' defined? 
Section 90 of the IPC defines consent
known to be given under 'fear or misconception' which reads as under:-

"90. Consent known to be given under fear or misconception - A
consent is not such consent as it intended by any section of
this Code, if the consent is given by a person under fear of
injury, or under a misconception of fact, and if the person
doing the act knows, or has reason to believe, that the consent
was given in consequence of such fear or misconception; xxxx"

Thus, if consent is given by the prosecutrix under a misconception of
fact, it is vitiated. 

In the present case, the accused had sexual
intercourse with the prosecutrix by giving false assurance to the
prosecutrix that he would marry her.

 After she got pregnant, he refused to do so. 
From this, it is evident that he never intended to
marry her and procured her consent only for the reason of having
sexual relations with her, which act of the accused falls squarely
under the definition of rape as he had sexual intercourse with her
consent which was consent obtained under a misconception of fact as
defined under Section 90 of the IPC. 


 Thus, this Court held that the accused in that case was guilty of the offence of rape as he had obtained the consent of the prosecutrix fraudulently, under a misconception of fact.

11. The High Court has gravely erred in fact and in law by reversing
the conviction of the accused for the offence of rape and convicting
him under Section 376 of the IPC.

 It is apparent from the evidence on
record that the accused had obtained the consent of the prosecutrix
for sexual intercourse under a misconception of fact i.e. that he
would marry her and thus made her pregnant. 

He is thus guilty of rape
as defined under Section 375 of the IPC and is liable to be punished
for the offence under Section 376 of the IPC. 

The trial court was
absolutely correct in appreciating the evidence on record and
convicting and sentencing the accused for the offence of rape by
holding that the accused had obtained the consent of the prosecutrix
under a misconception of fact and this act of his amounts to an
offence as the alleged consent is on the basis of misconception, and
the accused raped the prosecutrix. He brazenly raped her for two years
or more giving her the false assurance that he would marry her, and as
a consequence she became pregnant. For the reasons stated supra, we
have to uphold the judgment and order of the trial court in convicting
and sentencing the accused for the offence of rape, by reversing the
judgment and order of the High Court. We find the accused-respondent
guilty of the offence of rape as defined under Section 375 of the IPC.



12. The answer to point no.3 is pertaining to the question of sentence
awarded by the trial court to the accused. The trial court has
justified in awarding of maximum sentence of life imprisonment to the
accused under Section 376 of the IPC on the ground that the facts of
this case are of a very grave nature. The accused being related to the
prosecution used to often visit her house and took undue advantage of
this relationship and kept the prosecutrix under the misconception
that he would marry her and committed rape on her for more than two
years thereby making her pregnant. In such circumstances, the trial
court held that it would be justifiable to award the maximum sentence
to the accused. We, therefore, hold that the trial court was correct
in awarding the maximum sentence of life imprisonment to the accused
as he has committed a breach of the trust that the prosecutrix had in
him, especially due to the fact that they were related to each other.
He thus invaded her person, by indulging in sexual intercourse with
her, in order to appease his lust, all the time knowing that he would
not marry her. He committed an act of brazen fraud leading her to
believe that he would marry her.

13. A woman's body is not a man's plaything and he cannot take
advantage of it in order to satisfy his lust and desires by fooling a
woman into consenting to sexual intercourse simply because he wants to indulge in it. The accused in this case has committed the vile act of rape and deserves to be suitably punished for it.



NON-REPORTABLE




IN THE SUPREME COURT OF INDIA CRIMINAL
APPELLATE JURISDICTION




CRIMINAL APPEAL NO.1949 OF 2013 (Arising out of SLP
(Crl.) No.5390 of 2008)




State of U.P. ... Appellant

VS.

Naushad ... Respondent



J U D G M E N T





V. Gopala Gowda, J.



Leave granted.

2. This appeal is directed against the impugned judgment and order
dated 16.03.2007, passed by the High Court of Judicature at Allahabad
in Criminal Appeal No. 4505 of 2005, whereby the High Court allowed
the appeal filed by the accused-respondent acquitting him for the
offence punishable under Section 376 of the Indian Penal Code (in
short IPC) by reversing the judgment and order dated 05.10.2005 of the
Additional Sessions Judge, Fast Track Courts 1, Muzzaffarnagar in
Sessions Trial No. 377 of 2004 which convicted the accused under
Section 376 and sentenced him to undergo imprisonment for life and a
fine of [pic]10,000/- and in default of payment of fine further
imprisonment for a period of one year.


3. The brief facts of the case are stated hereunder to examine the
correctness of the findings recorded by the High Court in reversing
the judgment of the trial court. 

The accused- Naushad is the son of
the maternal uncle of the prosecutrix - Shabana's father - who is the
informant. The informant complained that Naushad used to visit their
house often and enticed his daughter - Shabana and cheated her,
promising to marry her and had regular sexual intercourse with her on
this pretext.
The informant came to know about this when his daughter
narrated to her mother how she was raped and she got pregnant. The
complainant along with his wife went to complain to the parents of the
accused, Irshad and his wife and told them that their son-Naushad
raped their daughter-Shabana by giving a false promise of marriage and
she has become pregnant. Irshad and his wife accepted their fault and
promised to punish Naushad.
A Panchayat was held a day before lodging
the report when Irshad and his wife offered [pic]10,000/- to
[pic]20,000/- to them and said that they will not marry their son with
Shabana.
The informant alleged that Irshad and his wife even
threatened to kill him if any action is taken. On the basis of this
information given by Irshad, case crime no. 115 of 2003 was registered
at P.S. Kotwali Nagar in Muzaffar Nagar. After investigation, the
Investigating Officer arrested Irshad and Naushad. Shabana was sent
for medical examination and the report was submitted by Dr. Abha.

After the charge sheet was submitted, the

case was committed to the Sessions Court. The Sessions Judge framed
charge under Section 376, IPC against Irshad and Section 376 read with
Section 109, IPC against Naushad and both were further charged under
Section 506, IPC. The Sessions Judge held the accused Naushad guilty
of the charge under Section 376 and convicted him, sentencing him to
imprisonment for life.
Being aggrieved by this, the accused filed an
appeal before the High Court. The High Court allowed the appeal and
held that the prosecution had failed to prove its case beyond
reasonable doubt and the order of conviction and sentence of the
accused respondent was set aside and he was directed to be released
forthwith.
Against the reversal of conviction and sentence of the
accused by the High Court, the appellant - State has filed the present
appeal.

4. The trial court after examining the evidence on record and hearing
the rival legal contentions recorded its findings on the issue as to
whether the accused - Naushad is guilty of the offence of rape charged
under Section 376 of the IPC.
On behalf of the prosecution, P.W.1
Shabana (the prosecutrix), P.W.2 (the complainant) Muzaffar Ali, P.W.3
Dr.Abha Attrey and P.W.4 S.I. Kiran Pal Singh were examined by way of
oral evidence in support of the occurrence. P.W.2 has proved the
written complaint vide Ex. Ka-1, P.W.3 has proved her medical
examination report vide Ex. Ka-2 and P.W.4 has proved the FIR vide Ex.
Ka-3, and showing the registration of the case vide Ex.Ka-4, the
charge-sheet vide Ex. Ka-8 among other exhibits. The statement of the
accused was recorded under Section 313 of the Cr.P.C. wherein he has
stated that he used to visit the house of the complainant but he
denied any illicit relations with Shabana.
He stated that there was a
rumour in the village about her becoming pregnant and the complainant
made a proposal to arrange his marriage with Shabana but the members
of his family refused to the proposal on the ground that Shabana was
of 'bad character'. The accused alleged that the complainant filed a
false complaint and the witnesses have made false depositions and the
case has been filed in order to pressurise him.
The accused produced
no evidence to prove his defence.
P.W.1 the prosecutrix-Shabana was
examined by the prosecution and deposed on solemn affirmation that
"Irshad is related to me like Dada (like grandfather). He is the
maternal uncle of my father and the accused Naushad is the son of
Irshad. The incident dates back to about two years or quarter past
two years.
The accused Naushad used to often visit my house and
sometimes used to sleep at night in my house itself. At that time, my
age was about 15 years.
Naushad used to say to me, I shall marry you
and then he forcibly used to commit rape on me and might have forcibly
committed rape on me 15 or 20 times in a year and he continued
inciting and misguiding me. I became pregnant as a result of this and
when I asked him to marry me, he refused to do so
.
... Even in the
Panchayat, Naushad refused to marry me. Irshad offered [pic]20,000/-
and refused to arrange marriage of his son with me". She also stated
that thereafter a daughter was born to her and it was the result of
the accused leaving her pregnant.


Further, P.W.2-Muzaffar Ali, while making his deposition on
solemn affirmation has stated that "Accused Irshad is related to me as
my real maternal uncle and accused Naushad is his son. About one and a
half years ago, I lodged the (F.I.) Report of the occurrence
. At that
time the age of Shabana was about 16 years.
Naushad used to visit my
house prior to one and a half years, and sometimes he used to stay at
night in my house. He might have stayed at night in my house several
times. Ten days prior to lodging the (F.I.) Report, Shabana conveyed
that Naushad had committed rape on her as a result of which she had
become pregnant.
I talked to my maternal uncle (Irshad) about this
matter, he asked me to wait for sometime and thereafter "Nikah"
(contract-marriage) will be got arranged. But two or four days
thereafter, Irshad stated that "Nikah" is not possible.
You may
accept ten to twenty thousands rupees and threatened if a Report of
the case was made, he (Irshad) would kill him (Muzaffar Ali).
Thereafter, whatever was conveyed by my daughter was got type written
in a form of complaint and then the same was lodged at the Police
Station.
After lodging the (F.I.) Report, a baby/daughter was born to
Shabana, which might be aged about 8 months now
. Thereafter, a
Panchayat was held in the village. Even in the Panchayat, Irshad
refused to arrange "Nikah" of his son (accused Naushad) with my
daughter Shabana."

5. After hearing the arguments advanced by the learned counsel on
behalf of the parties, the trial court came to the conclusion that in
the circumstances narrated by the witnesses of the prosecution and the
evidence on record the charge levelled against accused- Naushad under
Section 376 of the IPC stands proved. Vide order dated 05.10.2005 of
the Session's Judge, 

the accused was convicted of the offence of rape
under Section 376 of the IPC on the ground that the consent given by
P.W.1 Shabana was not consent for sexual intercourse in the eyes of
law. 

She had given consent on the ground that the accused had
promised to marry her and thus this consent was obtained by
misconception of fact and therefore the case is covered under section
376 of the IPC. 

The trial court held that as the facts of this case
are of a very grave nature, the accused was awarded maximum sentence
of life imprisonment and further stated that the victim and the
accused are related to each other and the accused took undue advantage
of the victim due to this relationship by keeping her under the
misconception that he would marry her and committed rape on her as a
result of which she became pregnant and later on gave birth to a baby
daughter. 

In view of the circumstances, the trial court awarded
sentence of life imprisonment for the accused and to pay a fine of
[pic]10,000/-.


6. Against this judgment and order of the trial court the accused
filed an appeal in the High Court urging various grounds in support of
his prayer. On re-appreciation of the evidence of record, the High
Court has held that there is no material on record to show that the
accused had committed forcible sexual intercourse and that the
prosecutrix resisted it.
 

The High Court stated that she has admitted
the presence of her grandmother and younger sister in the room where
the accused used to commit sexual intercourse but she never raised an
alarm at that time or thereafter. 

The High Court further stated that
it was also very surprising that she never objected to the accused
sleeping in her room even though she claimed that he used to commit
forcible sexual intercourse. 

The High Court has held that
circumstances clearly show that she was a consenting party to the act
of the accused and the allegation of forcible sexual intercourse as
alleged cannot be accepted. 

Further, the High Court stated that even
if it is accepted that she consented for sexual intercourse on account
of misconception of fact that the accused had promised to marry her,
it will not give rise to an inference beyond reasonable doubt that the
accused had no intention to marry her at all from the inception and
that the promise he made was false to his knowledge. 

The High Court,
citing the case of Deelip Singh @ Dilip Singh v. State of Bihar[1],

has held that it could be a breach of promise to marry rather than
false promise to marry and there is nothing on record to indicate that
she was incapable of understanding the nature and implication of the
act of the accused for which she consented to

The High Court thus
allowed the appeal and set aside the judgment and order dated
05.10.2005 of the trial court convicting and sentencing the accused,
on the ground that the prosecution failed to prove its case beyond
reasonable doubt and held that the trial court has erroneously
convicted the accused. 

The accused was acquitted of the charge under
Section 376 of the IPC and was directed to be released from jail.


7. Being aggrieved by the impugned judgment and order of the High
Court, the appellant- State of Uttar Pradesh has filed this appeal
before this Court.

The learned senior counsel for the appellant-State, Mr. Ratnakar
Dash has contended that the accused promised the prosecutrix - Shabana
that he would marry her and then had sexual intercourse with her even
though he knew from the inception that he had no intention of marrying
her and that the High Court erred in holding that the victim was a
consenting party and that even if the victim consented to sexual
intercourse, it was not free consent but was given on the pretext of a
false promise made by the accused to marry her. Thus, the accused
committed rape on the victim. He further contended that in such type
of case, the trial court has rightly observed that the evidence of the
victim is comparatively more important and credible. He stated that
the accused clearly practised deception on the victim in order to
indulge in sexual intercourse with her and the trial court rightly
convicted the accused of rape and sentenced him to life imprisonment
due to the gravity of the offence.

8. Mr. Pranab Kumar Mullick, learned counsel on behalf of the
respondent contended that no time of committing rape has been
mentioned in the FIR and hence, the entire prosecution story is
doubtful and also as per the FIR, the victim narrated her story to her
mother but it is silent about the manner in which her father came to
know about the incident. It was further contended that the age of the
victim was 19 years and at the time of the occurrence, her age was not
less than 16 years.
It was further contended that the victim was of
little intelligence but no such evidence is available on file. Also,
admittedly, other family members used to sleep in the room and no hue
and cry was made at the time of intercourse and hence, it was
intercourse with consent and not rape. It was contended that the High
Court rightly reversed the conviction of the trial court and acquitted
the accused of the charge of rape.

9. We have heard the rival legal contentions and perused the evidence
on record. The following issues arise for our consideration:

(i) Whether the High Court has rightly reversed the conviction
and sentence of the accused for the offence of rape punishable
under Section 376 of the IPC?

(ii) Whether the trial court was correct in convicting the
accused for the offence of rape punishable under Section 376 of
the IPC by holding that the victim did not give her free consent
to the act of sexual intercourse
but it was consent given under
misconception of fact?


(iii) Whether the trial court was right in holding that the
crime was of a very grave nature and was thus justified in
sentencing the accused to the maximum punishment of life
imprisonment as provided for under Section 376 of the IPC?


10. We will answer point nos. 1 and 2 together as they are related to
each other. Section 376 of IPC prescribes the punishment for the
offence of rape. 

Section 375 of the IPC defines the offence of rape,
and enumerates six descriptions of the offence. 

The description
"secondly" speaks of rape "without her consent". 

Thus, sexual
intercourse by a man with a woman without her consent will constitute
the offence of rape. 

We have to examine as to whether in the present
case, the accused is guilty of the act of sexual intercourse with the
prosecutrix 'against her consent'. 

The prosecutrix in this case has
deposed on record that the accused promised marriage with her and had
sexual intercourse with her on this pretext and when she got pregnant,
his family refused to marry him with her on the ground that she is of
'bad character'.


How is 'consent' defined? 

Section 90 of the IPC defines consent
known to be given under 'fear or misconception' which reads as under:-

"90. Consent known to be given under fear or misconception - A
consent is not such consent as it intended by any section of
this Code, if the consent is given by a person under fear of
injury, or under a misconception of fact, and if the person
doing the act knows, or has reason to believe, that the consent
was given in consequence of such fear or misconception; xxxx"

Thus, if consent is given by the prosecutrix under a misconception of
fact, it is vitiated.
 

In the present case, the accused had sexual
intercourse with the prosecutrix by giving false assurance to the
prosecutrix that he would marry her.

 After she got pregnant, he refused to do so. 
From this, it is evident that he never intended to
marry her and procured her consent only for the reason of having
sexual relations with her, which act of the accused falls squarely
under the definition of rape as he had sexual intercourse with her
consent which was consent obtained under a misconception of fact as
defined under Section 90 of the IPC. 

Thus, the alleged consent said to have obtained by the accused was not voluntary consent and
this Court is of the view that the accused indulged in sexual intercourse with
the prosecutrix by misconstruing to her his true intentions. 

It is
apparent from the evidence that the accused only wanted to indulge in
sexual intercourse with her and was under no intention of actually
marrying the prosecutrix. He made a false promise to her and he never
aimed to marry her.
 

In the case of Yedla Srinivas Rao v. State of
A.P.[2], with reference to similar facts, this Court in para 10 held
as under:-


"10. It appears that the intention of the accused as per the
testimony of PW1 was, right from the beginning, not honest and he
kept on promising that he will marry her, till she became pregnant.
This kind of consent obtained by the accused cannot be said to be
any consent because she was under a misconception of fact that the
accused intends to marry her, therefore, she had submitted to
sexual intercourse with him. This fact is also admitted by the
accused that he had committed sexual intercourse which is apparent
from the testimony of PWs 1, 2 and 3 and before Panchayat of elders
of the village. It is more than clear that the accused made a false
promise that he would marry her. Therefore, the intention of the
accused right from the beginning was not bona fide and the poor
girl submitted to the lust of the accused completely being misled
by the accused who held out the promise for marriage. This kind of
consent taken by the accused with clear intention not to fulfil the
promise and persuaded the girl to believe that he is going to marry
her and obtained her consent for the sexual intercourse under total
misconception, cannot be treated to be a consent."



Further, in para 17 of the said judgment, this Court held that:-

"In the present case in view of the facts as mentioned above we are
satisfied that the consent which had been obtained by the accused
was not a voluntary one which was given by her under misconception
of fact that the accused would marry her but this is not a consent
in law. This is more evident from the testimony of PW1 as well as
PW6 who was functioning as Panchayat where the accused admitted
that he had committed sexual intercourse and promised to marry her
but he absconded despite the promise made before the Panchayat.
That shows that the accused had no intention to marry her right
from the beginning and committed sexual intercourse totally under
the misconception of fact by prosecutor that he would marry her."


Thus, this Court held that the accused in that case was guilty of the offence of rape as he had obtained the consent of the prosecutrix fraudulently, under a misconception of fact.

11. The High Court has gravely erred in fact and in law by reversing
the conviction of the accused for the offence of rape and convicting
him under Section 376 of the IPC.

 It is apparent from the evidence on
record that the accused had obtained the consent of the prosecutrix
for sexual intercourse under a misconception of fact i.e. that he
would marry her and thus made her pregnant. 

He is thus guilty of rape
as defined under Section 375 of the IPC and is liable to be punished
for the offence under Section 376 of the IPC. 

The trial court was
absolutely correct in appreciating the evidence on record and
convicting and sentencing the accused for the offence of rape by
holding that the accused had obtained the consent of the prosecutrix
under a misconception of fact and this act of his amounts to an
offence as the alleged consent is on the basis of misconception, and
the accused raped the prosecutrix. He brazenly raped her for two years
or more giving her the false assurance that he would marry her, and as
a consequence she became pregnant. For the reasons stated supra, we
have to uphold the judgment and order of the trial court in convicting
and sentencing the accused for the offence of rape, by reversing the
judgment and order of the High Court. We find the accused-respondent
guilty of the offence of rape as defined under Section 375 of the IPC.




12. The answer to point no.3 is pertaining to the question of sentence
awarded by the trial court to the accused. The trial court has
justified in awarding of maximum sentence of life imprisonment to the
accused under Section 376 of the IPC on the ground that the facts of
this case are of a very grave nature. The accused being related to the
prosecution used to often visit her house and took undue advantage of
this relationship and kept the prosecutrix under the misconception
that he would marry her and committed rape on her for more than two
years thereby making her pregnant. In such circumstances, the trial
court held that it would be justifiable to award the maximum sentence
to the accused. We, therefore, hold that the trial court was correct
in awarding the maximum sentence of life imprisonment to the accused
as he has committed a breach of the trust that the prosecutrix had in
him, especially due to the fact that they were related to each other.
He thus invaded her person, by indulging in sexual intercourse with
her, in order to appease his lust, all the time knowing that he would
not marry her. He committed an act of brazen fraud leading her to
believe that he would marry her.


13. A woman's body is not a man's plaything and he cannot take
advantage of it in order to satisfy his lust and desires by fooling a
woman into consenting to sexual intercourse simply because he wants to indulge in it. The accused in this case has committed the vile act of rape and deserves to be suitably punished for it.


14. In view of the foregoing reasons, this appeal is allowed. The
judgment and order of the High Court is set aside and the conviction
and sentencing of the accused by the trial court under Section 376 of
the IPC is upheld. The accused-respondent is found guilty of the
offence of rape as defined under Section 375 of the IPC and is
sentenced to imprisonment for life under Section 376 of the IPC. The
accused-respondent is directed to surrender before the trial court
within four weeks.









.............................................
....................................J.


[SUDHANSU JYOTI MUKHOPADHAYA]







................................................
.................................J.
[V. GOPALA GOWDA]


New Delhi,
November 19, 2013

ITEM NO.1A COURT NO.14 SECTION II

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl) No(s).5390/2008

(From the judgement and order dated 16/03/2007 in CRLA No.4505/2005, of
The HIGH COURT OF JUDICATURE AT ALLAHABAD)



STATE OF U.P. Petitioner(s)

VERSUS



NAUSHAD Respondent(s)

Date: 19/11/2013 This Petition was called on for judgment today.

For Petitioner(s) Mr. Gaurav, Adv.

Mr. Abhisth Kumar, Adv.

Mr. Kamlendra Mishra,Adv.

For Respondent(s) Mr. Pranab Kumar Mullick,Adv.



Hon'ble Mr. Justice V. Gopala Gowda pronounced the non-reportable
Judgment of the Bench comprising Hon'ble Mr. Justice Sudhansu Jyoti
Mukhopadhaya and His Lordship.

Leave granted.

The Civil Appeal is allowed in terms of the non-reportable
judgment .




[RAJNI MUKHI] [USHA SHARMA]

SR. P.A. COURT MASTER

(Signed non-reportable judgment is placed on the file)

-----------------------
[1] (2005) 1 SCC 88

[2] (2006) 11 SCC 615





No comments:

Post a Comment

Note: Only a member of this blog may post a comment.