whether a suit filed seeking a declaration that a will and a sale deed are void, resulting their cancellation, will fall u/s. 7(iv-A) of the Court Fees Act, 1870, as amended by the U.P. Amendment Act (Act XIX of 1938) or Article 17(iii) of Schedule II of the Court Fees Act, 1870 for the purpose of valuation. = Shailendra Bhardwaj & Others .. Appellants Versus Chandra Pal & Another .. Respondents = Published in http://judis.nic.in/supremecourt/helddis.aspx

         COURT FEES ACT, 1870:

s.7(iv-A) and Articles 17(iii) as amended by U.P. Act, 19 of 1938 - Suit
for declaration of a will and a sale deed as null and void and for
cancellation thereof - Court fee payable - Held: The suit having been filed
after death of testator, suit property covered by the will has to be valued
- Since s. 7(iv-A) of the U.P. Amendment Act specifically provides that
payment of court fee in case where the suit is for or involving
cancellation or adjudging/declaring null and void decree for money or an
instrument, Article 17(iii) of Schedule II of the Court Fees Act would not
apply - Consequently, in terms of s. 7(iv-A) of the U.P. Amendment Act, the
court fees have to be computed according to the value of the subject matter
and trial court as well as High Court have correctly held so.

The appellant filed a suit for declaration of a will and a sale as null and
void and to cancel the same.  The suit property was valued at ? 30,00,000/-
but the fixed court fee of ? 200/- was paid under Article 17(iii) of
Schedule II to the Court Fees Act, 1870.  The trial court held that the
plaintiff should have paid the court fee as per s.17(iv-A) of the U. P.
Amendment Act.  The High Court upheld the said order.

In the instant appeal, the question for consideration before the Court was:
whether a suit filed seeking a declaration that a will and a sale deed are
void, resulting their cancellation, will fall u/s. 7(iv-A) of the Court
Fees Act, 1870, as amended by the U.P. Amendment Act (Act XIX of 1938) or
Article 17(iii) of Schedule II of the Court Fees Act, 1870 for the purpose
of valuation.

          Dismissing the appeal, the Court

HELD:

1.1  Article 17(iii) of Schedule II of the Court Fees Act, 1870 is
applicable in cases where the plaintiff seeks to obtain a declaratory
decree without any consequential relief and there is no other provision
under the Act for payment of fee relating to relief claimed. But if such
relief is covered by any other provisions of the Court Fees Act, then
Article 17(iii) of Schedule II will not be applicable. The suit, in the
instant case, was filed after the death of the testator and, therefore, the
suit property covered by the will has also to be valued. The plaintiff
valued the suit at Rs.30 Lakhs for the purpose of pecuniary jurisdiction.
However, he paid a fixed court fee of Rs.200/- under Article 17(iii) of
Schedule II of the Court Fees Act.  He had not noticed the fact that the
said Article stood amended by the State, by adding the words "not otherwise
provided by this Act". Since s. 7(iv-A) of the U.P. Amendment Act
specifically provides that payment of court fee in case where the suit is
for or involving cancellation or adjudging/declaring null and void decree
for money or an instrument, Article 17(iii) of Schedule II of the Court
Fees Act would not apply.  The U.P. Amendment Act, therefore, is
applicable, despite the fact that no consequential relief has been claimed.
Consequently, in terms of s. 7(iv-A) of the U.P. Amendment Act, the court
fees have to be computed according to the value of the subject matter and
the trial court as well as the High Court have correctly held so. [Para
10-11]

Suhrid Singh v. Randhir Singh and Others (2010) 12 SCC 12 - held
inapplicable


CASE LAW REFERENCE

(2010) 12 SCC 12 held inapplicable Para 5





                                               REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 8196  OF 2012
               [Arising out of SLP (Civil) No. 10958 of 2012]




Shailendra Bhardwaj & Others                       .. Appellants

                                   Versus

Chandra Pal & Another                              .. Respondents




                               J U D G M E N T




K. S. Radhakrishnan,J.



1.    Leave granted.

2.    The short question that has come up for consideration in this case  is
whether a suit filed seeking a declaration that a will and a sale  deed  are
void, resulting their cancellation, will fall under Section 7(iv-A)  of  the
Court Fees Act, 1870, as amended by the  U.P.  Amendment  Act  (Act  XIX  of
1938) [for short ‘the U.P. Amendment Act’] or Article  17(iii)  of  Schedule
II of the Court Fees Act, 1870 for the purpose of valuation.

3.    Civil Suit No. 230 of 2006 was filed before the  Court  of  the  Civil
Judge, Hathras, U.P. seeking the following reliefs:
      “(A)  Decree may be passed in favour of the plaintiffs and against the
           defendants, declare null and void and invalid of the forged will
           dated 21.3.2003 and sale deed dated 12.1.2005 and cancel and its
           information sent to the office of Registrar Hathras.


      (B)   That the cost of the Suit  may  be  decreed  in  favour  of  the
           plaintiff and against the defendants.


      (C)   That any other cost which may deem fit by the Hon’ble  Court  in
           favour of the  plaintiff  and  against  the  defendants  in  the
           interest of Justice.”




4.    The suit property was valued and the cost of the  property  was  fixed
at Rs.30,00,000/- and the Court fee  of  Rs.200/-  was  paid  under  Article
17(iii) of Schedule II of the Court Fee Act.  The question arose before  the
trial Court whether the plaintiff had  properly  valued  the  suit  and  the
court fee paid.  The trial Court took the view  that  the  plaintiff  should
have paid the court fee as per Section 7(iv-A) of the  U.P.  Amendment  Act.
The matter was taken up before the High Court.   The  High  Court  concurred
with the views taken  by  the  trial  Court  and  dismissed  the  appeal  on
15.12.2011, against which this appeal has been preferred.

5.    Shri Viresh Kumar Yadav, learned counsel appearing on  behalf  of  the
appellant, submitted that the  Courts  below  have  committed  an  error  in
holding that the suit be valued and an ad valorem court fee  be  paid  under
Section 7(iv-A) of the U.P. Amendment Act.  Learned counsel  submitted  that
the plaintiff had correctly valued the suit and proper court  fee  was  paid
in accordance with Article 17(iii) of Schedule II of  the  Court  Fees  Act.
Considerable reliance was also placed on  the  judgment  of  this  Court  in
Suhrid Singh v. Randhir Singh and Others [(2010) 12 SCC  12]  and  contended
that the Court fee need be paid only on the plaint averments.

6.    Shri M. R. Shamshad, learned counsel appearing for the respondent,  on
the other hand, contended that the  High  Court  has  come  to  the  correct
conclusion that even though no consequential reliefs was prayed  for,  still
as per the U.P. Amendment Act, plaintiff will have  to  pay  the  court  fee
under Section 7(iv-A) of the U.P. Amendment Act.  Learned counsel  submitted
that the plaintiff had valued the suit without noticing the  fact  that  the
State of U.P. had amended the Court Fee Act by Act XIX of 1938 and in  terms
of Section 7(iv-A) of the U.P. Amendment  Act,  the  court  fee  has  to  be
commuted according to the value of the subject  matter  and  an  ad  valorem
court fee has to be paid.  Learned counsel also submitted that the  judgment
of this Court in Suhrid Singh (supra) is not applicable to the facts of  the
present case and this Court had no occasion to consider  the  scope  of  the
U.P. State amendment in that judgment.

7.    We may, for proper appreciation of the various contentions  raised  by
the parties, refer to the provisions of the Court Fees Act as well as  Court
Fees Act as amended by the U.P. Amendment Act, which  will  give  a  correct
picture of the changes made by the U.P. Amendment  Act  on  the  Court  Fees
Act.  An operative chart of the Court Fees Act and the  U.P.  Amendment  Act
is given below:

|Court Fees Act                |As per UP Amendment Act (19  |
|                              |of 1938)                     |
|“7. Computation of fees       |“7. Computation of fees      |
|payable in certain suits:     |payable in certain suits for |
|The amount of fee payable     |money:                       |
|under this Act in the suits   |The amount of fee payable    |
|next hereinafter mentioned    |under this Act in the suits  |
|shall be computed as follows: |next hereinafter mentioned   |
|....................          |shall be computed as follows:|
|....................          |....................         |
|                              |....................         |
|(iv) In Suits –               |                             |
|....................          |For declaratory decree with  |
|....................          |consequential relief – (iv)  |
|For declaratory decree and    |in Suits-                    |
|consequent relief-            |to obtain a declaratory      |
|.........(a) .....            |decree or order, where       |
|.........(b)......            |consequential relief other   |
|For a declaratory decree and  |than relief specified in     |
|consequential relief (c) to   |sub-section (iv-A) is prayed;|
|obtain a declaratory decree or|                             |
|order, where consequential    |For cancellation or adjudging|
|relief is prayed,             |void instruments and decrees |
|.................             |– (iv-A) in suit for or      |
|.................             |involving cancellation of or |
|According to the amount at    |adjudging void or voidable a |
|which the relief sought is    |decree for money or other    |
|valued in the plaint or       |property having a market     |
|memorandum of appeal.         |value, or an instrument      |
|                              |securing money or other      |
|                              |property having such value:  |
|                              |                             |
|                              |Where the plaintiff or his   |
|                              |predecessor-in-title was a   |
|                              |party to the decree or the   |
|                              |instrument, according to the |
|                              |value of the subject matter, |
|                              |and                          |
|                              |Where he or his              |
|                              |predecessor-in-title was not |
|                              |party to the decree or       |
|                              |instrument, according to     |
|                              |one-fifth of the value of the|
|                              |subject-matter, and such     |
|                              |value shall be deemed to be- |
|                              |If the whole decree or       |
|                              |instrument is involved in the|
|                              |suit, the amount for which or|
|                              |value of the property in     |
|                              |respect of which the decree  |
|                              |was passed or the instrument |
|                              |executed, and if only a part |
|                              |of the decree or instrument  |
|                              |is involved in the suit, the |
|                              |amount or value of the       |
|                              |property to which such part  |
|                              |relates.                     |
|                              |                             |
|                              |Explanation – ‘the value of  |
|                              |the property’ for the        |
|                              |purposes of this sub section,|
|                              |shall be the market-value,   |
|                              |which in the case of         |
|                              |immovable property shall be  |
|                              |deemed to be the value as    |
|                              |computed in accordance with  |
|                              |sub-section (v), (v-A) or    |
|                              |(v-B), as the case may be.”  |
|                              |                             |
|                              |                             |
|                              |-------------------------    |
|                              |“Schedule II                 |
|                              |Article 17    Plaint or      |
|                              |memorandum of appeal in each |
|                              |of the following suits:      |
|                              |..................           |
|                              |..................           |
|                              |(iii) To obtain a declaratory|
|                              |decree where no consequential|
|----------------------        |relief is prayed in any suit,|
|“Schedule II                  |not otherwise provided for by|
|Article 17    Plaint or       |this act;                    |
|memorandum of appeal in each  |                             |
|of the following suits:       |                             |
|..................            |                             |
|..................            |                             |
|(iii) To obtain a declaratory |                             |
|decree where no consequential |                             |
|relief is prayed.             |                             |




8.    We may also indicate that the Suits Valuation Act, 1887  in  terms  of
which the suits have to be valued for the purpose  of  Court  Fees  Act  has
also been amended vide U.P.  Act  7  of  1939  (w.e.f.  16.7.1939)  and  the
difference in both the Acts are given below:

|Suits Valuation Act,        |Suits Valuation Act, 1887  |
|1887(Central Act)           |[Amended provision in the  |
|                            |State of U.P.]             |
|4. Valuation of relief in   |4. Valuation of certain    |
|certain suits relating to   |suits for the purposes of  |
|land not to exceed the value|jurisdiction – Suits       |
|of the land-                |mentioned in paragraphs IV |
|Where a suit mentioned in   |(a), IVA, IVB, V, VA, VB,  |
|the Court Fees Act, 1870 (7 |VI, VIA; VIII and X(d) of  |
|of 1870), Section 7,        |Section 7 and Articles 17, |
|paragraph IV, or Schedule   |18 and 19 of the Schedule  |
|II, Article 17, relates to  |II of the Court-Fees Act,  |
|land or an interest in land |1870, as in force for the  |
|of which the value has been |time being in the Uttar    |
|determined by rules under   |Pradesh, shall be valued   |
|the last foregoing section, |for the purposes of        |
|the amount at which for     |jurisdiction at the market |
|purposes of jurisdiction the|value of the property      |
|relief sought in the suit is|involved in or affected by |
|value shall not exceed the  |or the title to which is   |
|value of the land or        |affected by the reliefs    |
|interest as determined by   |sought, and such value     |
|those rules.                |shall, in the case of land,|
|                            |be deemed to be the value  |
|                            |as detgerminable in        |
|                            |accordance with the rules  |
|                            |framed under Section 3”.   |
|                            |[Vide U.P. Act 7 of 1939.  |
|                            |Section 3 (w.e.f.          |
|                            |16.07.1939].               |


9.    On comparing the above mentioned provisions, it is clear that  Article
17(iii) of Schedule II of the Court Fees Act is applicable  in  cases  where
the  plaintiff  seeks  to  obtain   a   declaratory   decree   without   any
consequential relief and there is no  other  provision  under  the  Act  for
payment of fee relating to relief claimed.  Article 17(iii) of  Schedule  II
of the Court Fees Act makes it clear that  this  article  is  applicable  in
cases  where  plaintiff  seeks  to  obtain  a  declaratory  decree   without
consequential reliefs and there is no other  provision  under  the  Act  for
payment of fee relating to relief claimed.  If there is no  other  provision
under the Court Fees Act  in  case  of  a  suit  involving  cancellation  or
adjudging/declaring void or voidable a will or sale deed on the question  of
payment of court  fees,  then  Article  17(iii)  of  Schedule  II  shall  be
applicable.  But if such relief is covered by any other  provisions  of  the
Court Fees Act, then Article 17(iii) of Schedule II will not be  applicable.
On a comparison between the Court Fees Act and the U.P.  Amendment  Act,  it
is clear that Section 7(iv-A) of the U.P. Amendment Act covers suits for  or
involving cancellation or  adjudging/declaring  null  and  void  decree  for
money or an instrument securing money or other property having  such  value.
 The suit, in this case, was filed after the  death  of  the  testator  and,
therefore, the suit property covered by the will  has  also  to  be  valued.
Since Section 7(iv-A) of the U.P. Amendment Act specifically  provides  that
payment  of  court  fee  in  case  where  the  suit  is  for  or   involving
cancellation or adjudging/declaring null and void decree  for  money  or  an
instrument, Article 17(iii) of Schedule II of the Court Fees Act  would  not
apply.  The U.P. Amendment Act, therefore,  is  applicable  in  the  present
case, despite the fact  that  no  consequential  relief  has  been  claimed.
Consequently, in terms of Section 7(iv-A) of the  U.P.  Amendment  Act,  the
court fees have to be commuted according to the value of the subject  matter
and the trial Court as well as the High Court have correctly held so.

10.   We are of the view that the decision of this  Court  in  Suhrid  Singh
(supra) is not applicable to the facts of the present case.  First  of  all,
this Court had no occasion to examine the scope of the U.P.  Amendment  Act.
That was a case in which this Court was dealing with Section  7(iv)(c),  (v)
and Schedule II Article 17(iii), as amended in the  State  of  Punjab.   The
position that we get in the State of Punjab is entirely different  from  the
State of U.P. and the effect of the U.P. Amendment  Act  was  not  an  issue
which arose for consideration in that case.  Consequently, in our view,  the
said judgment would not apply to the present case.

11.   Plaintiff, in the instant case, valued the suit  at  Rs.30  Lakhs  for
the purpose of pecuniary jurisdiction.   However, for the purpose  of  court
fee, the plaintiff paid a fixed court fee of Rs.200/- under Article  17(iii)
of Schedule II of the Court Fees Act.  Plaintiff had not  noticed  the  fact
that the above mentioned article stood amended by the State, by  adding  the
words “not otherwise provided by this Act”.  Since Section  7(iv-A)  of  the
U.P. Amended Act specifically provides for payment  of  court  fee  in  case
where the suit is for or involving cancellation or adjudging/declaring  void
or voidable an instrument securing  property  having  money  value,  Article
17(iii) of Schedule II of the Court Fees Act shall not be applicable.

12.   For the reasons abovementioned, the appeal lacks  in  merits  and  the
same is dismissed, with no order as to costs.






                                                       ………………………….........J.
                                        (K.S. Radhakrishnan)




                                                             …………………………………J.
                                         (Dipak Misra)
New Delhi,
November 21, 2012

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

Sec.302 , 498 A I.P.C = F.I.R. to sub inspector that accidentally sari caught with fire of stove = Dying declaration recorded by Magistrate revealed that husband burnt her alive by pouring kerosin = Explanation by parents that F.I.R. statement was given at the instance of accused sister = Conviction is proper = NANDEPU ABRAHAM Appellant (s) VERSUS STATE OF A.P. Respondent(s) = published in http://courtnic.nic.in/supremecourt/qrydisp.asp

' F.I.R. to sub inspector that accidentally sari caught with fire of stove = Dying declaration recorded by Magistrate revealed that husband burnt her alive by pouring kerosin = Explanation by parents that F.I.R. statement was given at the instance of accused sister = Conviction is proper =

' PW-8 N. Victor Immanuel, at the relevant time, was working
as Civil Judge (Junior Division)-cum- Judicial Magistrate, First
Class, Podili. In his evidence, he has stated that on 12.04.2004
while he was holding Court at Darsi, he received a requisition
from the Community Health Centre at 1:15 p.m. for recording the
dying declaration. On receipt of the aforesaid requisition,
according to this witness, he proceeded to the hospital and
found the deceased lying on a cot in the general ward of the
hospital. He asked all the persons present there excepting the
duty Doctor to leave the place. This witness has further stated
that he put simple and initial questions to the deceased and
from the answers elicited from her he was satisfied that the
declarant was in a fit state of mind to give declaration.
According to him, the Doctor present there gave the certificate
about the fitness of the declarant to make declaration. She
disclosed that while she was preparing food, her husband
(appellant herein), brought kerosene tin, sprinkled the kerosene
and set her on fire with match stick. In the dying declaration,
she had further stated that her husband had set her on fire as
he wanted to marry another woman. After the dying declaration
was recorded, the Doctor gave certificate that the declarant was
in a fit state of mind while making the declaration.
PW-7 Dr. Anand Babu G. was working as Civil Assistant
Surgeon in the said hospital at the relevant time and he has
stated that he was present while the Judicial Magistrate, First
Class was recording the dying declaration. He deposed that
before recording the dying declaration, he saw the declarant and
found her to be in a fit state of mind to make declaration and,
accordingly, made endorsement that "the patient is conscious and
coherent and giving answers to the questions." He had further
stated that on completion of the recording of the dying
declaration he further certified that "the patient is physically
and mentally fit while giving statement".
Besides the aforesaid dying declaration, the deceased has
given oral dying declaration before PW-1 Yadhanapudi Gangamma,
her mother and PW-2, Yadhanapudi Chinna David, her brother. Both
of them have stated in their evidence that when they met the
deceased in the hospital and asked as to how she had suffered
burn injury, the deceased narrated that while she was cooking
food, the appellant came from behind, pour kerosene on her and
set her on fire. Both the witnesses have further stated that the
statement which she had given before the Sub-Inspector of Police
was at the instance of the sister of the accused.
From the facts narrated above, it is evident that the
deceased was in a fit state of mind to give the dying
declaration. The dying declaration had been recorded by the
Judicial Magistrate, First Class. It is voluntary in nature and
there is no reason to discard this dying declaration. Not only
this, there is dying declaration given by the deceased before
her mother (PW-1) and brother (PW-2). Further, the circumstances
under which the dying declaration recorded by the Sub-Inspector
of Police has also been explained.
In the face of what we have observed hereinabove, there is
no reason to discard the dying declaration recorded by the
Judicial Magistrate, First Class and further the oral dying
declaration given by the deceased before her mother (PW-1) and
brother(PW-2). We are of the considered opinion that the
prosecution has brought home the case beyond all reasonable
doubts and the appellant is rightly convicted and sentenced, as
above.

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1954 OF 2010


NANDEPU ABRAHAM ... APPELLANT


VERSUS


STATE OF A.P. ... RESPONDENT


O R D E R




The appellant was put on trial for commission of the
offence under Section 302 and 498-A of the Indian Penal Code
("IPC" for short). Sixth Additional District and Sessions Judge,
Markapur, by the judgment and order dated 3.10.2006 passed in
Sessions Case No. 286 of 2004 held him guilty and sentenced him
to undergo imprisonment for life and to pay a fine of Rs. 200/-,
in default, to undergo rigorous imprisonment for three months
for the offence punishable under Section 302 of the IPC and also
sentenced him to undergo rigorous imprisonment for a period of
two years and a fine of Rs. 200/-, in default, to
undergo simple imprisonment for three months for the offence
punishable under Section 498-A of the IPC.
Aggrieved by the same, the appellant preferred an appeal
and the High Court by its impugned judgment dated 22.10.2009
passed in Criminal Appeal No. 246 of 2007 maintained his
conviction and sentence and dismissed the appeal. This is how,
the appellant is before us with the leave of the Court.
According to the prosecution, the appellant happened to be
the husband of the deceased Nandepu Roothamma. Marriage between
them had taken place eight years prior to the date of the
incident, i.e., 12.04.2004 and had two children. It is alleged
that the appellant was suspecting the fidelity of the deceased
and contemplating to marry another woman. It is alleged that on
12.04.2004 at about 0600 hrs. while the deceased was cooking
food, the appellant poured kerosene and set her on fire.
Thereafter, he escaped from the house. The deceased was brought
to the Community Health Centre, Darsi. PW-6 Dr. N.B.
Ramakoteshwara Rao, who was working as Civil Assistant Surgeon
in the said Centre informed the Station House Officer, Darsi
about the admission of the deceased with burn injury. The
S.H.O., Darsi came to the Centre and recorded the statement of
the deceased which is marked as Exhibit P-12. According to the
said statement, she was married to the appellant about eight
years back and had two children. Further, according to the said
oral statement, when the deceased was preparing rice on the
kerosene stove, while pouring kerosene oil in the stove, her
saree came into contact with the flames and that had caused burn
injury. She had further stated that her husband, the appellant
herein, was not in the house at that particular time. The
aforesaid information was forwarded to the A.S.I. of Police,
Kurichedu Police Station and on that basis Crime No. 48 of 2004
was registered under the head "Women burns". However,
during the course of the investigation, it transpired that the
appellant had set on fire the deceased and, he was chargesheeted
for offence under Section 498-A and 302 of the IPC and
ultimately committed to the Court of Sessions to face the trial.


There is no eye-witness to the occurrence and the
conviction is based on the dying declaration recorded by PW-8 N.
Victor Immanuel, Judicial Magistrate, First Class, as also the
oral dying declaration given by the deceased before PW-1
Yadhanapudi Gangamma, her mother and PW-2, Yadhanapudi Chinna
David, her brother.
It is relevant here to state that the earlier statement,
Exhibit P-12, given by the deceased and recorded by the Sub-
Inspector of Police, on account of the death of the informant,
has been treated as dying declaration.
Mr. Harendra Singh, learned counsel appearing on behalf of
the appellant submits that from the dying declaration recorded
by the Sub-Inspector of Police it is evident that the deceased
met with an accidental death and, therefore, his conviction is
fit to be set aside.
Per contra, Mr. D. Mahesh Babu, learned counsel appearing
on behalf of the respondent-State, submits that the dying
declaration, Exhibit P-11, recorded by PW-8 N. Victor Immanuel,
Judicial Magistrate, First Class as also the oral dying
declaration given by the deceased to her mother (PW-1) and her
brother (PW-2) are sufficient to maintain the appellant's
conviction.
We have considered the rival submissions and we do not find
any substance in the submissions of Mr. Harender Singh.
PW-8 N. Victor Immanuel, at the relevant time, was working
as Civil Judge (Junior Division)-cum- Judicial Magistrate, First
Class, Podili. In his evidence, he has stated that on 12.04.2004
while he was holding Court at Darsi, he received a requisition
from the Community Health Centre at 1:15 p.m. for recording the
dying declaration. On receipt of the aforesaid requisition,
according to this witness, he proceeded to the hospital and
found the deceased lying on a cot in the general ward of the
hospital. He asked all the persons present there excepting the
duty Doctor to leave the place. This witness has further stated
that he put simple and initial questions to the deceased and
from the answers elicited from her he was satisfied that the
declarant was in a fit state of mind to give declaration.
According to him, the Doctor present there gave the certificate
about the fitness of the declarant to make declaration. She
disclosed that while she was preparing food, her husband
(appellant herein), brought kerosene tin, sprinkled the kerosene
and set her on fire with match stick. In the dying declaration,
she had further stated that her husband had set her on fire as
he wanted to marry another woman. After the dying declaration
was recorded, the Doctor gave certificate that the declarant was
in a fit state of mind while making the declaration.
PW-7 Dr. Anand Babu G. was working as Civil Assistant
Surgeon in the said hospital at the relevant time and he has
stated that he was present while the Judicial Magistrate, First
Class was recording the dying declaration. He deposed that
before recording the dying declaration, he saw the declarant and
found her to be in a fit state of mind to make declaration and,
accordingly, made endorsement that "the patient is conscious and
coherent and giving answers to the questions." He had further
stated that on completion of the recording of the dying
declaration he further certified that "the patient is physically
and mentally fit while giving statement".
Besides the aforesaid dying declaration, the deceased has
given oral dying declaration before PW-1 Yadhanapudi Gangamma,
her mother and PW-2, Yadhanapudi Chinna David, her brother. Both
of them have stated in their evidence that when they met the
deceased in the hospital and asked as to how she had suffered
burn injury, the deceased narrated that while she was cooking
food, the appellant came from behind, pour kerosene on her and
set her on fire. Both the witnesses have further stated that the
statement which she had given before the Sub-Inspector of Police
was at the instance of the sister of the accused.
From the facts narrated above, it is evident that the
deceased was in a fit state of mind to give the dying
declaration. The dying declaration had been recorded by the
Judicial Magistrate, First Class. It is voluntary in nature and
there is no reason to discard this dying declaration. Not only
this, there is dying declaration given by the deceased before
her mother (PW-1) and brother (PW-2). Further, the circumstances
under which the dying declaration recorded by the Sub-Inspector
of Police has also been explained.
In the face of what we have observed hereinabove, there is
no reason to discard the dying declaration recorded by the
Judicial Magistrate, First Class and further the oral dying
declaration given by the deceased before her mother (PW-1) and
brother(PW-2). We are of the considered opinion that the
prosecution has brought home the case beyond all reasonable
doubts and the appellant is rightly convicted and sentenced, as
above.
In the result, we do not find any merit in this appeal and
it is dismissed accordingly.




..........................J.
(CHANDRAMAULI KR. PRASAD)






..........................J.
(JAGDISH SINGH KHEHAR)
New Delhi; the
November 13, 2013

ITEM NO.104 COURT NO.10 SECTION II

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO(s). 1954 OF 2010

NANDEPU ABRAHAM Appellant (s)

VERSUS

STATE OF A.P. Respondent(s)
(With appln(s) for c/delay in filing SLP)

Date: 13/11/2013 This Appeal was called on for hearing today.

CORAM :
HON'BLE MR. JUSTICE CHANDRAMAULI KR. PRASAD
HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR

For Appellant(s) Mr. Harendra Singh, Adv.
Mr. Kuldip Singh,Adv.

For Respondent(s) Mr. D. Mahesh Babu,Adv.


UPON hearing counsel the Court made the following
O R D E R


Delay condoned.
The appeal is dismissed in terms of the signed order.







| (S.K. Rakheja) | |(Saroj Saini) |
|Court Master | |Court Master |


(Signed order is placed on the file)