Dr.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW

ACADEMIC SESSION:

2015 2016

CRIMINAL LAW - II

PROJECT

CASE COMMENTARY

STATE OF U.P VS NAUSHAD

Submitted to: Submitted by:

Dr. K.A. Pandey Lokesh Nigam

Asst. Professor (Law) B.A.LL.B.(Hons.)

RMLNLU IVsemester

Roll No. 74

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 ACKNOWLEDGEMENT
I would take great pleasure in thanking my Criminal Law professor, Dr. K.A. Pandey for his
infallible support all through the course of this project. This endeavor would not have been in its
present shape had he not been there whenever I needed him. He has been a constant source of
support all the while.

Also I would like to extend my sincere thanks to the library staff for always helping me out with
finding excellent books and material almost every time I needed. They too have been a constant
support system in the completion of this project.

Last but surely not the least- I would like to thank my friends for their timely critical analysis of
my work and special feedback, that worked towards the betterment of this work.

-LOKESH NIGAM

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 INTRODUCTION
Firstly the case was tried under the trial court in which the accussed was held guilty and
convicted. After that the accussed appeal in the high court of Allahabad and there he was
acquitted, after he was acquitted the appellant state of Uttar Pradesh has filed this appeal in the
supreme court where he was finally convicted on the reasonable ground. The case was cover
under the section 376,375,90 of Indian penal code.

FACTS OF THIS CASE

In this case a man naushad son of maternal uncle of the prosecutrix Shabanas father
who is informant.
Shabanas father says that naushad used to come his house and also used to sleep at night.
Her father stated that he enticed his daughter and cheated her, by saying that he promise
to marry her and had regular sexual intercourse with her.
And one day shabana become pregnant and when she goes to naushad for marry he
refused to do so.
Shabanas parents 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 promise to punish naushad.
A Panchayat was held a day before lodging the report when Irshad and his wife offered
10,000/- 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.

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ISSUE INVOLVED
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?
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?
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?

LAW ON THE POINT

Section 375 of the Indian penal code?
Section 376 of the Indian penal code?
Section 90 of the Indian penal code?

Section 375 of IPC

A man is said to commit rape who, except in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling under any of the six following de-
scriptions:
(First) Against her will.
(Secondly) Without her consent.
(Thirdly) With her consent, when her consent has been obtained by putting her or any person
in whom she is interested in fear of death or of hurt.
(Fourthly) With her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is or believes herself to
be lawfully married.
(Fifthly) With her consent, when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or through another

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of any stupefying or unwholesome substance, she is unable to understand the nature and
consequences of that to which she gives consent.
(Sixthly) With or without her consent, when she is under sixteen years of age. Explanation.
Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Section 376 of IPC

Punishment for rape.

(1) 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 women raped is his own wife and is not under twelve years of age, in which cases, he
shall be punished with imprisonment of either description for a term which may extend to two
years or with fine or with both: Provided that the court may, for adequate and special reasons to
be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven
years.
(2) Whoever,
(a) being a police officer commits rape
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he
is appointed; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman
in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody
established by or under any law for the time being in force or of a womans or childrens insti-
tution takes advantage of his official position and commits rape on any inmate of such jail,
remand home, place or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position
and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or

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(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not
be less than ten years but which may be for life and shall also be liable to fine: Provided that the
Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence
of imprisonment of either description for a term of less than ten years. Explanation 1.Where a
woman is raped by one or more in a group of persons acting in furtherance of their common
intention, each of the persons shall be deemed to have committed gang rape within the meaning
of this sub-section. Explanation 2.Womens or childrens institution means an institution,
whether called an orphanage or a home for neglected woman or children or a widows home or
by any other name, which is established and maintained for the reception and care of woman or
children. Explanation 3.Hospital means the precincts of the hospital and includes the
precincts of any institution for the reception and treatment of persons during convalescence or of
persons requiring medical attention or rehabilitation.]

SECTION 90 OF IPC

Consent known to be given under fear or misconception.A consent is not such a 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; or Consent of insane
person.if the consent is given by a person who, from unsoundness of mind, or intoxication, is
unable to understand the nature and consequence of that to which he gives his consent; or
Consent of child.unless the contrary appears from the context, if the consent is given by a
person who is under twelve years of age.

DECISION OF THE COURT

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Firstly the case was decided in the trial court. In the trial court both the witness( shabhana and
shabanas father) stated their solemn affirmation. Shabana said that 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. And the same thing was said by her father. After that 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.

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 Rs.10,000/-.

Against this judgment and order of the trial court the accused filed an appeal in the High
Court

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

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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.

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.

The appellant- State of Uttar Pradesh has filed this appeal before this Court.

The learned senior counsel for the appellant contended that the acussed promised to shabana that
he would marry her and then had sexual intercourse with her even though he know from the
inception that he had not 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. So that supreme
court changed the decision and held him guilty.

CASE ANALYSIS
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Naushad the son of irfan used to go the shabanas house where he used to sleep also at night. One
day he promise to shabana that he would marry to her and then both have a sexual relationship.
He have no intention to marry her but he made a false promise to her for satisfying his lust by
fooling her. One day she become pregnant so she goes to meet naushad but naushad refuse to
marry with her. Shabana tell the whole incident to the mother and her father listen whole
incident. So her father and mother goes to the naushad house and requested to their son to marry
his daughter. Naushads parents give 10,000 to shabanas parents for compromise this matter and
even threaten to kill them if they lodge a F.I.R. the case was rightly decide in the trial court that
taking a consent by misconception of fact is not a free consent which was define under section
90 of IPC and held him liable for rape and give a punishment for life imprisonment. But the
decision was changed when the accused naushad appeal in the Allahabad high court. But after
that appellant state of u.p again open the case in suprem3 court that trial court rightly observed
the case and held him guilty because her consent is taken by naushad is not a free consent it is
taken by a misconception of fact.

Conclusion

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I agree with the decision of the supreme court. The decision was held rightly and they give the
justice to shabana because shabana is a innocent girl which she was used by the naushad for
satisfying his lust. Shabana is in a misconception of fact that naushad will marry her and she
agree for a sexual relationship but when she got pregnant, naushad refuse to marry her.
Shabanas consent is not a consent because she is in a misconception of fact so supreme court
righlty decided that naushad is guilty of rape under section 375 of IPC.

The decision of the trial court is also right but later than high court changed the decision and
acquitted the naushad but after state of u.p appeal in the supreme court and finally decided that if
the consent is obtained by the misconception of fact then it is not a consent so he was liable for a
rape.

I agree with the decision of the supreme court that it was justice for a shabana.

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