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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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 Bihar1, 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.  1  (2005) 1 SCC 88

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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.

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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.    

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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?

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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:-

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“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

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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  

2 (2006) 11 SCC 615

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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

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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

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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

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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

Page 22

C.A.@SLP(Crl.)No.5390 of 2008 -22-

directed  to  surrender  before  the  trial  court  

within four weeks.       

  ………………………………………………………………………J.       [SUDHANSU JYOTI MUKHOPADHAYA]          

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

New Delhi,     November 19, 2013