Held:
- 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.
(Para 11)
2. 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.
(Para 13)
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: .
Gopala Gowda, J.
1. 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 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 10,000/- to 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 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 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 (2005) 1 SCC 88 , 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. (2006) 11 SCC 615, 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
