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2011 Supreme(Pat) 1073
[2012 (2) East Cr C 612 (All)]
ALLAHABAD HIGH COURT
VINOD PRASAD, J.
Shiwalik Ghosh & Anr. - Revisionists
Versus
State of U.P. & Anr. - Opp. Parties
Cr. Revision No. 1169 of 2011,
Decided on: May 19, 2011.
The main legal point established in the judgment is that consent obtained through fraud and misconception of facts constitutes rape, as per Section 375, I.P.C.
Headnote:
Rape - Consent - Sections 323, 328, 376, I.P.C. - Summary of Acts and Sections: Sections 323, 328, 376, I.P.C. - The court discussed the allegations of rape, consent, and deceitful promises of marriage, and referred to legal provisions under Section 375, I.P.C. and relevant case law to establish that the accused's actions constituted rape and deceit.
Fact of the Case:
The victim alleged that the accused raped her after administering intoxication and subsequently blackmailed her with false promises of marriage. The accused's defense claimed that the victim consented to the acts.
Finding of the Court:
The court found that the victim's allegations were credible and supported by clear and cogent evidence, establishing the accused's commission of rape and deceitful promises of marriage.
Issues: The key issue was whether the accused's actions constituted rape and deceit, and whether the victim's consent was obtained through fraud and misconception of facts.
Ratio Decidendi: The court held that the victim's consent was obtained through fraud and misconception of facts, and referred to legal provisions under Section 375, I.P.C. and relevant case law to support its decision.
Final Decision: The revision was dismissed, and the accused were directed to surrender and face trial.
By the Court.-Challenge in this revision by mother Chitali Ghosh (A-2) and her son Shivalik Ghosh (A-1), is to their summoning dated 24.1.2011 in Criminal Case No. 771 of 2011, State v. Shivalik Ghosh and another, relating to crime No.32 of 2010, for offences under Sections 323, 328, 376, I.P.C., P.S. Mahila Thana, Sector 32, NOIDA, District G.B. Nagar by A.C.J.M.-I, G.B. Nagar.
2. A glimpse of background facts, as are perceptible from the affidavit of Shivalik Ghosh filed in support of this revision, counter-affidavit and rejoinder affidavits are that on 3.12.2010 at 12.45 p.m., victim-informant Barnali Baishya (R-2) lodged an FIR at P.S. Mahila Thana, NOIDA, G.B. Nagar as crime No. 32 of 2010 under Sections 323, 328, 376, I.P.C. vide Annexure No. 1 to the affidavit alleging therein that informant is a resident of H-137, Sector 22, NOIDA and was employed in a Software Company. In the month of August, 2010 while surfing on internet on Jeewan Sathi.com she developed acquaintance with A-1 revisionist Shivalik Ghosh, resident of Maipal Krishna Apartment, I-1305, Shushant Lok, C-Block, Gurgaon, who was working with Hero Honda Private Ltd., Dharo Heda, Jaipur Road. On the fateful date 18.8.2010, A-1 picked up R-2 from her company and carried her to Gurgaon where, he dissolved some intoxication in her cold drink and when R-2 lost her senses that A-1 outraged her modesty by raping her, After regaining consciousness, R-2 resisted sexual assault on her but was pacified on a false deceitful assurance of solemnizing marriage with her. Taking advantage of the situation A-1 started often visiting victim's abode and indulge in carnal intercourse both at NOIDA and Gurgaon and he continued to assure R-2 regarding false promise of solemnizing marriage. Having some apprehension R-2 demanded telephone number of A-2 which was given to her by A-1 after repeated insistence. Mother of R-2 also conversed with A-2 who did not object to tying up nuptial knot between A-1 and R-2 but postponed it for two years. When victim R-2 telephoned A-2 then also no objection was shown to the tying of knots by A-2 and therefore, R-2 being assured of marriage continued to succumb to the lustrous overtures of A-1 and physical sexual contact between A-1 and R-2 continued. Cheating and deceiving R-2 revisionist A-1 even took loan of Rs. 50,000/- from her which was not paid back till the date of lodging of FIR by R-2. In telephonic conversation between R-2 and A-2, on 1.9.2010, she was informed that Rs. 15 lacs loan is due on A-1 and marriage between them shall be solemnized only after the said money is paid by the victim. When informed about physical relationship A-2 replied that in between opposite sexes it not very unethical and is a normal conduct. On 13.9.2010, A-1 consented to tie knots with R-2 in the presence of one Deepak but informed R-2 that details shall be finalized on arrival of A-2 following day. R-2 accompanied A-1 to the airport to receive A-2 but there, she was assaulted. A-2 separated A-1 from R-2 who also refused to marry R-2. Since R-2 was deceived and cheated and her most precious honour was robbed off by A-1 in conspiracy and connivance with A-2 that victim R-2 was left with no other option and hence she approached the police and lodged her FIR annexure 1 at PS Mahila Thana, Sector 32, NOIDA, district G.B. Nagar.
3. After registration of the crime investigation ensued and I.O. recorded statements of the victim and her mother, filed cumulatively as Annexure No. 4 and finally concluding investigation charge-sheeted revisionist on 11.1.11, for offences under Sections 323, 328, 376, IPC vide Annexure No.7.
4. A.C.J.M. Ist, G.B. Nagar, in whose Court charge-sheet, Annexure No. 7, was submitted took cognizance of the offences on 24.1.2011 and registered case No. 771 of 2011 against the revisionist and summoned them to stand trial for those offences by passing impugned order, which has now been challenged by the accused revisionists in instant revision.
