# Informant/Victim v. State of U.P. & Anr

- **Citation:** (2024) 5 ILRA 277
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-30
- **Case number:** Criminal Appeal No. 4849 of 2024
- **Bench:** Rahul Chaturvedi, Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/informant-victim-v-state-of-u-p-anr-52093
- **Pages:** 13

## Headnote

Criminal Law-Indian Penal Code-1860Sections-376, 504 & 506-The Scheduled
Caste and Scheduled Tribe (Prevention of
Atrocities) Act, 1989-Sections 3(2)(v) 14-A
&
(10)
-The
Code
of
Criminal
Procedure,1973-Section 372-Criminal Appeal
by prosecutrix/victim against order of acquittal of
Accused/Respondent from charges under Section
376, 504, 506 IPC and Section 3(2)(v) of SC/ST
Act-Internal medical examination is an integral
part of investigation and the its absence the
prosecution looses its credibility-Nothing on
record to establish this flimsy allegation that her
brother
was
kidnapped
by
the
accused/
respondent and on this score she has denied for
any medical examination-Highly unlikely that the
accused-respondent have trapped the victim in
the false pretext of marriage-When victim is
already married and that marriage still subsist,
then any amount of promise to marry would
automatically gets evaporated.

Appeal dismissed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,930 of 43,923. This is a partial read: ask again with offset=39930 for what follows._

5 All. Informant/Victim Vs. State of U.P. & Anr.
277
the trial court has wrongly recorded the
finding holding the appellants- Veerpal and
Harpal guilty of offence under Section 392
I.P.C.

54. The appellants Chandrapal and
Veerpal have already died, therefore,
their
appeal
stands
abated.
The
appellants- Sanjay Dixit, Veerpal and
Pramod Kumar Sharma are already on
bail whereas Yogendra was never granted
bail and as per custody certificate dated
05.11.2022, he is in jail for more than 13
years.

55. In view of above, we find merit
in all these appeals. Accordingly, the
same
are
allowed.
The
impugned
judgment of conviction and order of
sentence are set aside. The appellants are
acquitted of the charges. Let appellant-
Yogendra be released from custody if he
is not required in any other case. A copy
of this order along with the trial court
records be transmitted forthwith.
----------
(2024) 5 ILRA 277
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2024

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.
THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Criminal Appeal No. 4849 of 2024

Informant/Victim ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Ashutosh Mishra, Kripa Kant Pandey

Counsel for the Respondent:
G.A.
Criminal Law-Indian Penal Code-1860Sections-376, 504 & 506-The Scheduled
Caste and Scheduled Tribe (Prevention of
Atrocities) Act, 1989-Sections 3(2)(v) 14-A
&
(10)
-The
Code
of
Criminal
Procedure,1973-Section 372-Criminal Appeal
by prosecutrix/victim against order of acquittal of
Accused/Respondent from charges under Section
376, 504, 506 IPC and Section 3(2)(v) of SC/ST
Act-Internal medical examination is an integral
part of investigation and the its absence the
prosecution looses its credibility-Nothing on
record to establish this flimsy allegation that her
brother
was
kidnapped
by
the
accused/
respondent and on this score she has denied for
any medical examination-Highly unlikely that the
accused-respondent have trapped the victim in
the false pretext of marriage-When victim is
already married and that marriage still subsist,
then any amount of promise to marry would
automatically gets evaporated.

Appeal dismissed. (E-15)

List of Cases cited:

1. Anurag Soni Vs St. of Chhatisgarh reported in
AIR 2019 SC 1857

2. Dr. Dhruvram Murlidhar Sonar Vs St. of Mah.
2019(18)SCC191

3. Naim Ahamed Vs St. (NCT of Delhi) 2023
LiveLaw (SC) 66

4. Maheshwar Tigga Vs St. of Jharkhand 2020
(10) SCC 108

5. Bannareddy & ors.Vs St. of Karn. & ors.,
(2018) 5 SCC 790

6. Jayamma Vs St. of Karn., 2021 (6) SCC 213

7. Virendra Singh Vs St. of UP & ors., 2022 (3)
ADJ 354 DB

8. Rajesh Prasad Vs St. of Bihar & anr., (2022) 3
SCC 471

9. Mallapa & ors.Vs St. of Karn.

(Delivered by Hon'ble Rahul Chaturvedi, J.
278 INDIAN LAW REPORTS ALLAHABAD SERIES
&
Hon'ble Ms. Nand Prabha Shukla, J.)

1. Heard Sri Ashutosh Mishra, Sri
Kripa Kant Pandey, learned counsel for the
appellant and Learned AGA for the State.

2. The instant appeal is under Section
14(A)(1) of the SC/ST Act 1989 read with
Section 372 Cr.P.C. spear headed against
Judgement and Order of acquittal dated
08.02.2024 passed by Additional Sessions
Judge, SC/ST Act, Court No.14, Prayagraj,
whereby learned Sessions Judge while
deciding SST No. 15(706) of 2020 (State
Vs. Madan Yadav) arising out of Case
Crime No. 1008 of 2019 under Section 323,
504, 506 and 376 IPC and Section 3(2)(V)
of SC/ST Act, P.S. Colonelganj, District
Prayagraj have convicted Madan Yadav
only under Section 323 IPC and awarding
six months S.I. and Rs. 1000/- fine only
acquitting him from all the serious charges
under Section 376, 504, 506 IPC and Section
3(2)(v) of SC/ST Act.

3. Aggrieved by the aforesaid
Judgement and Order the prosecutrix/victim
of Case Crime No. 1008 of 2019 is
proposing to invoke the powers of this Court
under Section 372 Cr.P.C. read with Section
14(A)(1) of SC/ST Act, with the following
prayer:-

 It is therefore, most respectfully
prayed that this Hon'ble Court may
graciously be pleased to allow the present
criminal appeal against the acquittal of the
opposite party no.2 and set aside the
judgement and order dated 08.02.2024
passed by the Additional Special Judge
(SC/ST Act), Court No.14, Prayagraj in
Sessions Trial No. 15(706) of 2020 (State of
U.P. Vs. Madan Yadav) arising out of case
crime no. 1008 of 2019 under Section 323,
504, 506, 376 IPC and Section 3(2)(v)
Scheduled Caste and Scheduled Tribes
(Prevntion of Atrocities) Act, 1989, Police
Station Colonelganj, District Prayagraj,
whereby the accused/opposite party no.2
has been acquitted for the offence under
section 3(2)(v) of Scheduled Caste and
Scheduled Tribes (Prevention of Atrocities )
Act, 1989 and has only awarded lessor
conviction under section 323 of IPC for six
months simple imprisonment along with fine
of Rs. 1000/- and in default of fine one
months additional convict and sentence the
opposite party no.2 as according to law.

d/or pass such other and further
order as this Hon'ble Court may deem fit
and
proper
under
the
facts
and
circumstances of the case."

4. We have heard Sri Ashutosh Mishra
and Sri Kripa Kant Pandey, learned counsel
for the appellant to their satisfaction and
learned AGA for the State and perused the
impugned Judgement and Order.

5. After hearing learned counsel the
appellant on the admission, we are
proposing to decide the appeal at this stage
itself.

6. Before coming to the merit of the
case, it is imperative to give a bare skeleton
facts of the case, so as to appreciate the
controversy in its correct perspective.

7. The accused-respondent Madan
Yadav is a charge sheeted accused under
Section 323, 504, 506 and 376 IPC and
Section 3(2)(V) of SC/ST Act.

8. Vide Ext. (Ka-1) an application was
given by the Prosecutrix to SSP, Prayagraj,
that during her educational days, she met
with Madan Yadav in the year 2014. On the
pretext of helping her in her studies and
5 All. Informant/Victim Vs. State of U.P. & Anr.
279
providing notes etc. they developed certain
amount of intimacy. During passage of time,
this relationship have crossed all the limits
of decency and they got involve in premarital sex with each other. Not only this,
for the purposes of helping her studies, the
accused often call her to 'Yadav lodge',
Laxmi Chauraha, Allahabad for 2-3 days
and thereafter leave her. As per prosecution
story, during this time he has extended
promise
that
he
would
marry
her.
Meanwhile, for the purposes of education,
she left to Lucknow, and has taken
admission in some other University. Even
then, Madan Yadav came to Lucknow and
called her to 'Nayan Atithigrih' and 'Hotel
Katiyar International' near PGI, Lucknow
and have a sex with her. In the year 2018,
Madan Yadav got a service in C.M.P.
Degree College, Allahabad. Thereafter,
there was a change in his behaviour and
attitude qua her. On 17.10.2019, when she
reached to C.M.P. Degree College to meet
Madan Yadav, then he candidly informed
her that he would not marry her. Now, he is
a Faculty in the said Degree College and
committed maar-peet with her. Dr. Prahlad
was aware of their relationship. On
05.11.2019 when she visited to Madan's
place then Madan and his mother pushed her
derogatorily and told her that they are
'Yadav' by caste and you are 'Chamar
(Scheduled Caste)' and they would not
permit her to even enter in her house.
Thereafter she tried to pacify the situation
and both of them met in Azad Park for 2-3
hours, where he keep on scolding her and
uttered filthy 'caste related abuses' to her.

9. The aforesaid factual story was
given by her to SSP, Prayagraj against
Madan Yadav and his mother with a
prayer to lodge an FIR under the
approriate section of the IPC and SC/ST
Act may be ordered. Accordingly in the
G.D. Entry no. 35 on 18.11.2019 was
registered at 14.29 hours.

10. After registering the case the
police investigated the matter and has
jotted down her 161 Cr.P.C. and 164
Cr.P.C. statement of the prosecutrix and
thereafter holding indepth probe into the
matter, charge sheet was submitted against
'Madan Yadav' only dropping the name of
his mother from the charge sheet.

11. Being the cognizable offence
specially relates to the SC/ST Act, the case
was committed to the Special Judge,
SC/ST Act on 28.01.2020 and the learned
Trial Judge on 14.02.2020 has framed the
charges under Section 376, 504, 506, 323
IPC and Section 3(2)(V) SC/ST Act.

12. In order to substantiate the
allegations the prosecution has produced
following
witnesses
whose
oral
testimonies were recorded supporting the
prosecution story. They are :-

(I) PW-1/The victim/informant
herself

(II)
PW-2/Gyan
Chandra
Maurya witness of fact

(III) PW-3/Arun Kumar witness
of fact

(IV) PW-4/Dr. Pallavi Pandey,
doctor who examined the victim

(V)
PW-5/Head
Constable
Sharda Prasad, who is witness of Chick
and G.D. Entry and lastly

(VI)
PW-6/ACP
Satyendra
Prasad Tiwari.

13. In addition to this number of
documents, original tehrir, 164 statement of
the
prosecutrix,
Ext
Ka-3
(Medical
Examination Report), Ext. Ka-5 Chick FIR,
Ext. Ka-7 Charge sheet etc. etc. are the
280 INDIAN LAW REPORTS ALLAHABAD SERIES
documents which were produced to support
the prosecution case.

14. After the prosecution witnesses
were over, the accused was called upon to
record his statement under Section 313
Cr.P.C., who broadly denied the prosecution
case and have submitted that on the aid and
advise of her counsel she has cooked up a
false story with malicious intention to rope
him in the heinous offence of rape. The
entire prosecution story is purposive and in
order to blackmail him. He further states in
his 313 Cr.P.C. statement that in the year
2016 he was engaged as Lecturer in
Economics in Raghuvar Dayal Pathak Inter
College and the prosecutrix met her and
concealing her caste and projecting herself
as 'Yadav' by caste, sought a support and
cooperation in her studies. She was having
different design in her mind, having a
malicious intention and she has made an
offer to marry accused-respondent.

In order to establish the defense
version
the
accused-respondents
has
produced DW-1 Saurabh Singh, DW-2
Bihari, DW-3 Kamlesh Kumar, DW-4
Kamla Chandra Gautam, DW-5 Atul
Srivastava, DW-6 Hari Shankar Yadav and
DW-7 Manjeet Yadav @ Panna Lal.

In addition to above, number of
other documents establishing the real
identity and the caste of the prosecutrix were
produced to establish the fact that she has
conceal her real caste and projected herself
that she belongs to the 'Yadav Community'
to develop the relationship. The prosecutrix
is a notorious lady wants to drag the
accused-respondent in a vicious web of
sexual
offence
against
the
accusedrespondent.

15. Thus, the long and short of the
prosecution case that on the false pretext of
marrying her, a consent was extracted from
the
victim/prosecutrix
by
accusedrespondent. Since the consent extracted was
not a free consent and in fact, it was on false
pretext of marring her. As per prosecutrix,
the accused-respondent was not sincere with
this relationship and he was using the victim
as toy or tool to quench his lust, thus his this
action qua her would term as Rape. In
addition to above, the prosecutrix was
insisting to marry her but the accused
respondent hurled the filthy abuses related
to her caste in a derogatory way and
committed maar-peet, thus it was prayed
that accused-respondent should be suitably
punished for the offence under Section 376
IPC and section 3(2)(v) of SC/ST Act.

16. Per contra the defense has
submitted that for the first time the incident
has taken place in the year 2014 and the FIR
was registered after inordinate delay of five
years in the year 2019. In fact the accusedrespondent was trapped in a 'Honey-Trap'.
In-fact, he was under the constant threat of
lodging of false FIR since 2014 itself. The
prosecutrix use to blackmail her and
demanding illegal money from him. In fact
the accused-respondent is a victim of
nefarious design of prosecutrix. It is further
submitted that the prosecutrix herself
projected to be a 'Yadav' by caste and
maintain the relationship. Both of them are
major started living together in a live-in
relationship, but after coming to know her
real caste, which is one of the major
consideration to marry, he declined to marry
her. Then she has woven an imaginary and
false story of rape upon her by the accusedrespondent. In fact, this relationship is out of
sweet & free will which lasted up to 5 good
years. As mentioned above, both of them are
major and knowing fully well the farreaching repercussion of pre-marital sex,
they maintain the relationship for five good
years without any hesitation, objection or
5 All. Informant/Victim Vs. State of U.P. & Anr.
281
resistance. There is nothing to attract the
provision of SC/ST Act. The prosecutrix
herself declined to have an extensive
medical test, so as to substantiate the
allegation of rape upon her. The charge
sheet submitted by the police after holding
the superficial and perfunctory investigation
without lifting the veil of the prosecutrix and
her ulterior motive.

Assessment Of The Allegation In
View Of Medical Evidence:-

17. PW-4 Dr. Pallavi Pandey, deposed
in her testimony, that on 22.11.2019, she
was posted as E.M.O., Women Hospital and
the prosecutrix was brought before her
around 11.00 in the day by Constable Sunita
Pandey. After conducting her primary
external examination of the prosecutrix viz:
about her identification mark and monthly
cycle etc. etc. Not only this the prosecutrix
maintain her sexual relationship with
accused-respondent after using 'condom', a
male contraceptive. Meaning thereby she
was conscious of the fact that that she should
not conceive and therefore she insisted her
male partner to use male contraceptive. She
told to the doctor that she maintain the
physical
relationship
with
accusedrespondent Madan Yadav at number of
occasions as she was having a friendly
relationship since 2014 and both of them
have decided to marry but when Madan
Yadav got a service in the C.M.P. Degree
College then there is a change in his attitude
and behaviour qua her.

18. Surprisingly, she did not permit her
to have an internal pathological examination
nor has given any pathological sample.
When Dr. Pallavi Pandey was put for cross
examination by the defence, then she
candidly states that the protectrix has
declined to get her internal examination or
pathological examination and not even for
the x-ray examination. When the doctor
have insisted to carry out the aforesaid
examination, she has refused to do so after
putting her signature and the date over it.
Under such circumstances, the doctor is not
in a position to give any candid opinion that
she was ever subjected to ant sexual
offensive against her by the accusedrespondent as alleged. It is also suggested
that by not permitting her to carry out the
aforesaid tests and examination the victim
deliberately wants to hide something very
substantial which touches the core issue.

To,
have
internal
medical
examination
is
an
integral
part
of
investigation and the its absence the
prosecution
looses
its
credibility
considerably.

The interesting feature, is that the
prosecutrix gave a strange explanation that
since her brother was kidnapped by the
accused-respondent and he was in the
constant threat, that is the reason behind, she
has never admitted herself for any desired
medical examination. She further states that
accused-respondents have extended threat to
her that if she admit herself for the medical
examination,
her
brother
would
be
eliminated. In order to save the life of her
brother, she has declined to get herself for
any medical examination. She admits that
she has never permitted herself for any
internal medical examination.

The interesting feature, is that
there is nothing on record to establish this
flimsy allegation that her brother was
kidnapped by the accused-respondent and
on this score she has denied for any medical
examination. No complaint, written or oral
to the local police official is on record to
indicate that she or her brother is under
threat, that's reason for avoiding internal
medical examination.
282 INDIAN LAW REPORTS ALLAHABAD SERIES

In this circumstances, when there
is no medical report with regard to the
alleged
allegation
of
serious
sexual
offensive against her by the accusedrespondent goes, unsubstantiated in the
absence of medical examination report. The
explanation is a vain attempt on the part of
the victim prosecutrix to cover up and hide
something substantial which touches the
core issue.

19. In paragraph 16.5 of the impugned
judgement attained significant, in which it
has been mentioned that both the parties
after attaining the age of majority establish a
physical relationship among them in the
year 2014 which lasted up to 2019. In such
type of cases the consent of the prosecutrix
attains important and significance. If the
relationship is consensual, then the physical
relationship would not come within the
mischief of rape. But in the instant case, the
entire castle of the prosecution case is based
upon that on the false pretext of marriage the
consent of the prosecution was extracted and
after using her and after quenching the
sexual lust the accused-respondents started
ignoring her. In this regard Section 90 of the
IPC which reads thus:-

"90. Consent known to be given
under fear or misconception- A consent is
not such a consent as is 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."

Thus, no consent is defined in IPC
and shall be construed, in common parlance.
Consent, given by the person under fear of
injury OR misconception of fact is not a
valid consent in the eye of law. Then the
Court has to gather from the individual's
conduct and attending circumstances.

Assuming and admitting for the
sake of argument, that accused-respondent
extended a promise that, he would marry her
and on this promise she consented to have
pre-marital sex. Later on, she wriggled out
from his promise then, could it be said, that
he
extracted
her
consent
under
misconception of fact ?

The facts of the present case
indicates that this relationship starts from
2014 and lasted upto 2018. Both of them met
several times, in hotel, lodges, guest houses
at Allahabad or at Lucknow and spent
quality time with each other. Is it a normal
behaviour of a girl ? She is surrendering her
body and soul to a person who allegedly
non-serious about their relationship. During
this long period of five years, she never
insisted to solemnise formal marriage first.
Only after her break-up with the accusedrespondent after five years period, she came
to know that his partner was non-serious
about his commitment. This story is nothing
but a cock & bull story, for one's own
satisfaction.

20. Learned counsel for the appellant
after spelling out the entire factual series of
the fact submits that the poor victim is a
subject of fraud and misconception by the
accused-respondent.
The
accusedrespondent
has
initially
developed
a
relationship with her, on a pretext of
providing the study material and guiding her
for her examinations. But lateron, this
relationship got serious and has crossed the
limit of decency when the girl visited
'Yadav Lodge' near Laxmi Chauraha,
Allahabad where they have maintained
physical relationship. The girl is not in a
position to spell out the date and month of
her first sex with accused-respondent. It is
alleged that the base of this relationship is a
5 All. Informant/Victim Vs. State of U.P. & Anr.
283
non-serious false pretext of marriage given
by the accused-respondent to her and she
believed that promise as true and surrender
her body and soul before accusedrespondent.

In her testimony, she states that he
often extend threat to her either 'he will
commit suicide or kill' her in the event she
does not allow her body. In the testimony is
also being surfaced that lateron she joined
the Ambedkar University, Lucknow for her
further studies but the accused-respondent
reached at Lucknow and call her. Both of
them
visited
number
of
hotels.
As
mentioned above, this relationship is lasted
for almost 4-1/2-5 years without any
resistance, hesitation or objection. This
relationship was maintained at Allahabad,
thereafter in different hotels and lodges at
Lucknow. Madan used to visit Lucknow and
after engaging a hotel on his own I.D., the
prosecutrix also joined him in the hotel. She
is unable to give the name, number and dates
of the hotels, where both of them spent
quality time.

21. On this, learned counsel for the
appellant, has relied upon the judgemen of
Hon'ble Apex Court in the case of Anurag
Soni Vs. State of Chhatisgarh reported in
AIR 2019 SC 1857 . The relevant extract of
the judgement is quoted hereinbelow:-

"12. The sum and substance of
the aforesaid decisions would be that if it
is established and proved that from the
inception the accused who gave the
promise to the prosecutrix to marry, did
not have any intention to marry and the
prosecutrix gave the consent for sexual
intercourse on such an assurance bythe
accused that he would marry her, such a
consent can be said to be a consent
obtained on a misconception of fact as
per Section 90 of the IPC and, in such a
case, such a consent would not excuse the
offender and such an offender can be said
to have committed the rape as defined
under Section 375 of the IPC and can be
convicted for the offence under Section
376 of the IPC.

15. Now, so far as the submission
on behalf of the accusedappellant that the
accused had marriage with Priyanka Soni
on 10.06.2013 and even the prosecutrix
has also married and, therefore, the
accused
may
not
be
convicted
is
concerned, the same cannot be accepted.
The prosecution has been successful by
leading cogent evidence that from the very
inspection the accused had no intention to
marry the victim and that he had mala fide
motives and had made false promise only
to satisfy the lust. But for the false promise
by the accused to marry the prosecutrix,
the prosecutrix would not have given the
consent to have the physical relationship.
It was a clear case of cheating and
deception."

22. The Court has occasion to go
through the entire judgement. Facts of the
aforesaid case is entirely different from
the facts of the present case. In Anurag
Soni's case the family of the prosecutrix
and the accused were known to each other
therefore, even prosecutrix and accused
were known to each other. The accused
was to marry another girl Priyanka Soni,
the accused continue to talk of marriage
with the prosecutrix and continued to give
the promise that he will marry the
prosecutrix. On 28.04.2013, the accused
called the prosecutrix telephonically and
responding to his call, she came to his
place by train on 29.04.2013 and accused
took her to the place of residence. During
her stay, in his house during 29.04.2013
and 30.04.2013 they have established
284 INDIAN LAW REPORTS ALLAHABAD SERIES
physical relationship thrice and thereafter
on 20.06.2013 appellant telephonically
informed the prosecutrix that now he has
already married.

23. On this score Hon'ble Apex Court
that the appellant Anurag Soni has already
engaged to marry to some other girl, he
make a false promise to Priyanka Soni and
therefore observed that the appellant was
rightly convicted for the offence under
Section 376 IPC. Thus, it is clear that the
aforesaid
judgement
is
clearly
distinguishable on the facts of the case and
as
such
is
of
no
help
to
the
prosecutrix/appellant.

24. So far as the consent part of the
prosecutrix in the instant case, there are
number of authorities, which is akin to the
facts of the present case. The first and
foremost is Dr. Dhruvram Murlidhar
Sonar Vs.State of Maharashtra reported
in 2019(18)SCC191. The brief facts of the
case are :-

"In this case, the girl lodged a
complaint with the police stating that she
and the accused were neighbours and they
fell in love with each other. One day in
February, 1988, the accused forcibly raped
her and later consoled her by saying that he
would marry her. She succumbed to the
entreaties of the accused to have sexual
relations with him, on account of the
promise made by him to marry her, and
therefore continued to have sex on several
occasions. After she became pregnant, she
revealed the matter to her parents. Even
there- after, the intimacy continued to the
knowledge of the parents and other relations
who were under the impression that the
accused would marry the girl, but the
accused avoided marrying her and his father
took him out of the village to thwart the bid
to marry. The efforts made by the father of
the girl to establish the marital tie failed.
Therefore, she was constrained to file the
complaint after waiting for some time."

Thus, Section 90 though does not
define "consent", but describes what is not
"consent". Consent may be express or
implied, coerced or misguided, obtained
willingly or through deceit. If the consent is
given
by
the
complainant
under
misconception of fact, it is vitiated. Consent
for the purpose of Section 375 requires
voluntary participation not only after the
exercise of intelligence based on the
knowledge of the significance and moral
quality of the act, but also after having fully
exercised the choice between resistance and
assent. Whether there was any consent or
not is to be ascertained only on a careful
study of all relevant circumstances.

There is no straitjacket formula for
determining whether the consent given by
the prosecutrix to sexual intercourse is
voluntary or whether it is given under the
misconception of the fact, whether there was
any consent or not is to be ascertained only
on a careful study of all relevant
circumstances each case has to be its own
peculiar facts, which may have bearing on a
question whether the consent was voluntary
or was given under the misconception of
fact. There is clear distinction between rape
and a consensual sex. The Court in such
cases carefully examined whether accused
actually wanted to marry with victim or had
a malafide motive and had made a false
promise to this effect to satisfy his lust, as
latter false ambit of cheating or deception.
There is a distinction between breach of
promise or not fulfilling the promise.

25. In yet another judgement in the
case of Naim Ahamed Vs. State (NCT of
Delhi) reported in 2023 LiveLaw (SC) 66:-
Difference between giving a false promise
5 All. Informant/Victim Vs. State of U.P. & Anr.
285
and committing breach of promise by the
accused- In case of false promise , the
accused right from the beginning would not
have any intention to marry the prosecutrix
and would have cheated or deceited the
prosecutrix by giving a false promise to
marry her only with a view to satisfy his lust,
whereas in case of breach of promise, one
cannot deny a possibility that the accused
might have given a promise with all
seriousness to marry her, and subsequently
might
have
encountered
certain
circumstances unforeseen by him or the
circumstances beyond his control, which
prevented him to fulfil his promise.

26. The bone of contention raised on
behalf of the respondents is that the
prosecutrix had given her consent for sexual
relationship under the misconception of fact,
as the accused had given a false promise to
marry her and subsequently he did not
marry, and therefore such consent was no
consent in the eye of law and the case fell
under the Clause - Second of Section 375
IPC. In this regard, it is pertinent to note that
there is a difference between giving a false
promise and committing breach of promise
by the accused. In case of false promise, the
accused right from the beginning would not
have any intention to marry with the
prosecutrix and would have cheated or
deceited the prosecutrix by giving a false
promise to marry her only with a view to
satisfy his lust, whereas in case of breach of
promise, one cannot deny a possibility that
the accused might have given a promise with
all
seriousness
to
marry
her,
and
subsequently
might
have
encountered
certain circumstances unforeseen by him or
the circumstances beyond his control, which
prevented him to fulfill his promise. So, it
would be a folly to treat each breach of
promise to marry as a false promise and to
prosecute a person for the offence under
Section 376. As stated earlier, each case
would depend upon its proved facts before
the court.

27. In this regard yet another
judgement in the case of Maheshwar Tigga
Vs. State of Jharkhand reported in 2020
(10) SCC 108 in which Hon'ble Apex Court
while dealing the question of Section 90 IPC
and Section 376 IPC opined that :-

"13.
The
question
for
our
consideration is whether the prosecutrix
consented to the physical relationship under
any misconception of fact with regard to the
promise of marriage by the appellant or was
her
consent
based
on
a
fraudulent
misrepresentation of marriage which the
appellant never intended to keep since the
very inception of the relationship. If we
reach the conclusion that he intentionally
made a fraudulent misrepresentation from
the very inception and the prosecutrix gave
her consent on a misconception of fact, the
offence of rape under Section 375 IPC is
clearly made out. It is not possible to hold in
the nature of evidence on record that the
appellant obtained her consent at the
inception by putting her under any fear.
Under Section 90 IPC a consent given under
fear of injury is not a consent in the eyes of
law. In the facts of the present case we are
not persuaded to accept the solitary
statement of the prosecutrix that at the time
of the first alleged offence her consent was
obtained under fear of injury.

14. Under Section 90 IPC, a
consent given under a misconception of
fact is no consent in the eyes of law. But
the misconception of fact has to be in
proximity of time to the occurrence and
cannot be spread over a period of four
years. It hardly needs any elaboration
that the consent by the appellant was a
conscious and informed choice made by
286 INDIAN LAW REPORTS ALLAHABAD SERIES
her after due deliberation, it being spread
over a long period of time coupled with a
conscious positive action not to protest.
The prosecutrix in her letters to the
appellant also mentions that there would
often be quarrels at her home with her
family members with regard to the
relationship, and beatings given to her.

20. We have no hesitation in
concluding
that
the
consent
of
the
prosecutrix was but a conscious and
deliberated choice, as distinct from an
involuntary action or denial and which
opportunity was available to her, because of
her deepseated love for the appellant leading
her to willingly permit him liberties with her
body, which according to normal human
behaviour are permitted only to a person
with whom one is deeply in love. The
observations in this regard in Uday (supra)
are considered relevant:

"25...It usually happens in such
cases, when two young persons are madly
in love, that they promise to each other
several times that come what may, they
will get married. As stated by the
prosecutrix the appellant also made such
a promise on more than one occasion. In
such circumstances the promise loses all
significance, particularly when they are
overcome with emotions and passion and
find
themselves
in
situations
and
circumstances where they, in a weak
moment, succumb to the temptation of
having sexual relationship. This is what
appears to have happened in this case as
well,
and
the
prosecutrix
willingly
consented to having sexual intercourse with
the appellant with whom she was deeply in
love, not because he promised to marry her,
but because she also desired it. In these
circumstances it would be very difficult to
impute to the appellant knowledge that the
prosecutrix had consented in consequence of
a misconception of fact arising from his
promise. In any event, it was not possible for
the appellant to know what was in the mind
of the prosecutrix when she consented,
because there were more reasons than one
for her to consent."

28. In the light of the aforesaid legal
pronouncement of Hon'ble Apex Court, it is
imperative to bring on record the facts of the
present case and test it on the aforesaid
parameters with regard to the consensual
relationship or the said consent was
allegedly extracted by the accused after
befooling her or rather on a false promise of
marriage ?

29. In paragraph 16.6 of the impugned
judgement that the consent was taken from
the prosecutrix after playing fraud upon her
on the false promise of marriage. It is urged
by the counsel for the appellant that relying
upon his false word, she has surrender her
body
and
soul
before
the
accusedrespondent. However, this argument gets
nullify to the extent that the prosecutrix was
already married woman with one Om
Prakash in the year 2010 and that marriage
is still hold good. To establish this fact DW2 Bihari was examined, who states that the
prosecutrix belongs to his family and she is
his niece and who got married in 2010 with
one Om Prakash Bantariya. This marriage
continued for two years and since then she
is residing all alone. He states he has
attended the said marriage. DW-4 Kamla
Chandra Gautam, Gram Panchayat Adhikari
have produce the 'Parivar Register' in which
column no. 13, the prosecutrix and name of
Om Prakash has mentioned. However, the
prosecutrix has denied the factum of
marriage with Om Prakash and pleaded
ignorance as to how her name has mentioned
in Parivar Register. On this score, the
learned Trial Court has rightly given a
finding that under circumstances, it is highly
5 All. Informant/Victim Vs. State of U.P. & Anr.
287
unlikely that the accused-respondent have
trapped her in the false pretext of marriage.
Secondly, assuming for the sake of
argument, that some promise was extended
to her but after the emergence of this new
fact, that victim is already married to Om
Prakash and that marriage still subsist, then
any amount of promise to marry would
automatically gets evaporated.

30. In paragraph 19 of the impugned
judgement, so far as applicability of Section
3(2)(v) of the SC/ST Act, it is stated that the
prosecutrix herself has projected that she is
belongs to "Yadav Community" and when
the accused-respondent came to know about
her real caste, then he declined to marry her.
In our society, the caste of the parties attains
significant, which plays a vital role in giving
a permanence to any relationship. It was
revealed by prosecutrix herself that village
Dharampur Nyay Panchayan Visanpur
Block Saidpur, District Ghazipur in the
voter list her father's name is Hari Lal
Yadav and in her own voter card her father's
name is Hari Lal Yadav and the prosecutrix
has
unable
to
clarify
the
situation.
Therefore, it can be easily inferred that a
lady who is already married and without
dissolution of her earlier marriage and
concealing her caste has maintained the
physical relationship for good 5 years
without any objection and hesitation and
both of them have visited numbers of hotel,
lodges at Allahabad and Lucknow and
enjoyed the company of each other. It is
difficult to adjudicate who is befooling
whom ?

31. No doubt, chapter XVI "Sexual
Offences", is a womensentic enactment to
protect the dignity and honour of a lady and girl
and rightly so, but while assessing the
circumstances, it is not the only and every time
the male partner is at wrong, the burden is upon
both of them. It is unswallowable proposition
that a weaker sex is being used by the male
partner for five good years and she keep on
permitting him on so called false pretext of
marriage. Both of them are major and they
understand the gravity of the situation and the
far reaching repercussion of pre-marital sex and
still they maintained this relationship at
different places, different cities, which clearly
indicates that this acquisitions that she was
subjected to sexual harassment and rape cannot
be accepted and learned Trial Judge rightly so
have given a benefit of doubt to the accusedrespondent and relieved from the major charges
pasted against accused-respondent.

32. In the case of Bannareddy and
others vs. State of Karnataka and others,
(2018) 5 SCC 790, in paragraph 10, the Hon'ble
Apex Court has considered the power and
jurisdiction of the High Court while interfering
in an appeal against acquittal and in paragraph
26 it has been held that "the High Court should
not have re-appreciated the evidence in its
entirety, especially when there existed no grave
infirmity in the findings of the trial Court. There
exists no justification behind setting aside the
order of acquittal passed by the trial Court,
especially when the prosecution case suffers
from several contradictions and infirmities."

33. In Jayamma vs. State of Karnataka,
2021 (6) SCC 213, the Hon'ble Supreme Court
has been pleased to explain the limitations of
exercise of power of scrutiny by the High Court
in an appeal against an order of acquittal passed
by a Trial Court.

34. In a recent judgement of this Court
in Virendra Singh vs. State of UP and
others, 2022 (3) ADJ 354 DB, the law on
the issue involved has been considered.

35. Similar view has been reiterated by
Hon'ble Apex Court in Rajesh Prasad vs.
288 INDIAN LAW REPORTS ALLAHABAD SERIES
State of Bihar and another, (2022) 3 SCC
471.

36. Since, it is a government appeal
against the acquittal, it will be relevant to
note the principles of law laid down by the
Apex Court with regard to the appreciation
of evidence in the appeal against the
acquittal. Recently, in the case of Mallapa
and others Vs. State of Karnataka, the
Apex Court has held as under :-

"36. Our criminal jurisprudence
is essentially based on the promise that no
innocent shall be condemned as guilty. All
the safeguards and the jurisprudential
values of criminal law, are intended to
prevent any failure of justice. The
principles which come into play while
deciding an appeal from acquittal could be
summarized as:

(i) Appreciation of evidence is the
core element of a criminal trial and such
appreciation must be comprehensive ?
inclusive
of
all
evidence,
oral
or
documentary;

(ii)
Partial
or
selective
appreciation of evidence may result in a
miscarriage of justice and is in itself a
ground of challenge;

(iii)
If
the
Court,
after
appreciation of evidence, finds that two
views are possible, the one in favour of the
accused shall ordinarily be followed;

(iv) If the view of the Trial Court
is a legally plausible view, mere possibility
of a contrary view shall not justify the
reversal of acquittal;

(v) If the appellate Court is
inclined to reverse the acquittal in appeal
on a re-appreciation of evidence, it must
specifically address all the reasons given by
the Trial Court for acquittal and must
cover all the facts;

(vi) In a case of reversal from
acquittal to conviction, the appellate Court
must demonstrate an illegality, perversity
or error of law or fact in the decision of the
Trial Court."

37. Thus, after thrashing the entire
evidences on record and after critically
analyzing the submissions advanced
and the findings recorded by the
learned trial Court, we are of the
considered opinion that the judgment
of the trial court does not suffer from
any illegality or non appreciation of
evidence.