CASE COMMENT ON STATE OF UP v.

NAUSHAD

INTRODUCTION

This case is in appeal against the impugned judgment of the Allahabad High Court, aquitting the
accused of charges and reversing the judgment of the Sessions Court.

In this case the accused, Naushad continuously had sexual intercourse with the victim Shabana
on the pretext of promise to marry her. Later on she became pregnant and the accused denied to
marry her and the accused’s also threatened the victim’s family to not take any action against it.
Then the FIR was filed and charges were framed under Section 376 read with Section 109 and
also under section 509.

The charge sheet was submitted to the Sessions Court. The court held that the consent given by
the victim was not the consent in the eyes of law. The consent was given under the
misconception of the fact and was vitiated on the ground that the accused made the promise to
marry her. Also the court held that the accused deserve the maximum punishment of life
imprisonment as the case is of a very grave nature. The victim and therefore the suspectsquare
measure associated with one another and therefore the suspect took undue advantage of the
victim as a result this relationship by keeping her below the misperception that he would marry
her and committed rape on her as a result of that she became pregnant and presently gave birth to
a baby female offspring. in sight of the circumstances, the court control that the suspect Naushad
guilty of the charge u/s. 376 and guilty him, sentencing him to imprisonment for all times
The suspect went in charm within the state supreme court. The state supreme court allowed
the charm and control that the prosecution had didn't prove its case on the far
side affordable doubt. The state supreme court has control that there's no material on record to
point out that the suspect had committed strong-arm sexuality whichthe prosecutrix resisted it.
The state supreme court explicit that she has admitted the presence of her granny associated
youngersister withinthe area wherever the suspect accustomed commit sexuality however she ne'
erraised an alarm at that point or thenceforth. The state supreme court additional explicit that it
had been conjointly terribly stunning that she ne'er objected to the suspect sleeping in
her area even supposing she claimed that he accustomed commit strong-arm sexuality. The
court control that it may well be a breach of promise to marry instead of false promise to marry
and there's nothing on record to point that she was incapable of understanding the character and
implication of the act of the suspect that she consented to. Thus, the order of the conviction and
sentence of the suspect was put aside and therefore the suspect was directed to be discharged.

Against, this reversal the State had filed an appeal before the Supreme Court.

FACTS OF THE CASE

Naushad is the son of the maternal uncle of the prosecutrix - Shabana's father - who is the
informant. The informant complained that Naushad accustomed visit their house usually and
enticed his girl Shabana and cheated her, promising to marry her and had regular sexual
activity together with her on this pretext. The informant came to
understand concerning this once his girl narrated to her mother however she was raped and he or
she got pregnant. The litigant beside his spouse visited complain to the fogeys of the suspect,
Irshad and his spouse and told them that their sonNaushad raped their daughterShabana by
giving a false promise of wedding and he or she has become pregnant. Irshad and
his spouse accepted their fault and secure to penalise Naushad. A council was controlon a daily
basis before lodging the report once Irshad and his spouse offered ten thousand to twenty
thousand to them and same that they'll not marry their son with Shabana. The informant alleged
that Irshad and his spouse even vulnerableto kill him if any action is taken. On the idea of
this info given by Irshad, case crime no. one hundred fifteen of 2003 was registered at P.S.
Kotwali Nagar in Muzaffar Nagar. when investigation, the investigation Officer inactive Irshad
and Naushad. Shabana was sent for scrutiny and also the report was submitted by Dr.
Abha. when the rap sheet was submitted, the case was committed to the Sessions Court. The
Sessions Court guilty him and sentenced him to bearimprisonment always and a fine of ten
thousand. The state supreme court aquitted him and reversed the judgment of the Sessions Court.
The Sessions Court convicted him and sentenced him to undergo imprisonment for life and a fine
of 10,000. The High Court aquitted him and reversed the judgment of the Sessions Court.
Aggrieved by the decision of the High Court the State filed an appeal before the Supreme Court.
CITATION

(2013) 16 SCC 651, AIR 2014 SC 384, 2014 CRLJ 540

BENCH STRENGTH

The bench in this case was Division bench comprising of Justice V. Gopala Gowda and Justice
Sudhansu Jyoti Mukhopadhaya.

ISSUES INVOLVED

The issues before the Supreme court were:

1. “Whether the High Court has rightly reversed the conviction and sentence of the accused
for the offence of rape punishable u/s. 376 of the IPC?”
2. “Whether the trial court was correct in convicting the accused for the offence of rape
punishable u/s. 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?”
3. “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 u/s. 376 of the IPC?”

LAW ON THE POINT

Section 376

“Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished
with imprisonment of either description for a term which shall not be less than seven years but
which may be for life or for a term which may extend to ten years and shall also be liable to fine
unless the woman raped is his own wife and is not under twelve years of age, in which case, he
shall be punished with imprisonment of either description for a term which may extend to two
years or with fine or with both”1

1
Indian Penal Code 1960, s 376(1)
Section 90

S. 90 of the IPC defines consent known to be given under 'fear ormisconception' which reads as
under:-

"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"2

DECISION

The court held that the High Court has erred in fact by reversing the conviction of the accused.
The trial was correct in awarding life imprisonment and fine of 10000 to the accused. Thus the
court held that the accused is guilty of rape and liable to be punished under section 376 of IPC.
Hence, the Supreme Court allowed the appeal.
RATIO OF THE CASE
The court held that 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 which shows that he never intended to marry her and procured her consent only
for the reason of having sexual relations with her. The consent of the victim was obtained under
a misconception of fact that he would marry her as defined under S. 90 of the IPC. The court
further held that he made a false promise to her and he never aimed to marry her. 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 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. Therefore the court held that the trial correct was
correct in awarding the accused the maximum punishment i.e., life imprisonment.

CASE COMMENTS

2
Indian Penal Code 1960, s 90.
In India the, courts still follow the same principles of breach of promise and false promise as
distinguished by the Supreme Court in the case of Deelip Singh v State of Bihar. The courts have
not yet laid down any criteria for determining that there is a breach of promise or it is false
promise from the very inception. It has only said that when the prosecutirix has consented on the
pretext of the promise to marry and has sexual intercourse and there is breach of that promise,
then the accused won’t be liable for the offence of rape and the consent won’t be considered as
vitiated one. The when the accused made false promise i.e, he never intended to marry and
relying on that promise the prosecutrix has sexual intercourse with the accused then the accused
would be liable for the offence of rape as the consent has been vitiated.
In the present case the court has justified the conviction of the accused by holding that there is a
breach of trust on behalf of the accused and he made a false promise i.e, he never intended to
marry her.
But the court did not take into concern the two important things:
Firstly, the issue of age (which is the most vital factor in determining the penal liability of the
accused) of the prosecutrix missed the attention of the court while deciding the case. The age as
admitted by the prosecutrix and her father was less than 16 years at the time of the commission
of the offence. But the court had no discussion on this. Had the Supreme Court noticed this issue
the conviction of the accused would have been better justified as the consent of a girl below 16
years is of no avail for the accused in repudiating his liability as per clause Sixthly of the Section
375 of the IPC.
Secondly, there is nothing on record which shows that the accused had committed forcible sexual
intercourse and that the prosecutrix resisted to it. She herself admitted the presence of
grandmother and younger brother in the room where the accused used to commit the sexual
intercourse and she never raised an alarm. Moreover, she never raised any objection when the
accused used to sleep with her. All this shows that she was the consenting party to it. Also even
if she says that she did all this under the misconception of the promise to marry, there is nothing
which shows that the promise made by the accused was false promise and he never intended to
marry her.
Thus, I do not appreciate the decision given by the Supreme Court of India.