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

Saturday, October 24, 2015

obtained the consent of the prosecutrix fraudulently, under a misconception of fact.=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.=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. 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.=2o13 - http://judis.nic.in/supremecourt/imgst.aspx?filename=41018

                                                              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

-----------------------
[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.