# Mohan Yadav @ Vivek Yadav v. State of U.P. & Anr

- **Citation:** (2023) 7 ILRA 48
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-07
- **Case number:** Criminal Appeal No. 2378 of 2022
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohan-yadav-vivek-yadav-v-state-of-u-p-anr-50362
- **Pages:** 7

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections 342, 376, 504 & 506 - Scheduled
Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989 - Section 3(2)(V) -
Constitution of India, 1950 - Article 21 -
Code of Criminal Procedure, 1973
-
Sections
161,
164
-
Appeal
against
rejection of bail - Malicious intention -
Allegation against appellant that on false
promise
of
marriage,
made
physical
relation
with
prosecutrix
-
Appellant
submitted that prosecutrix was major,
consenting party and knew consequences
that promise of marriage can be broken at
any stage by appellant but she continued
to remain in relation - Appellant further
submitted that as per F.I.R. and St.ment
of prosecutrix, no ingredients under SC/ST
Act was attracted, as incident, happened
in room and not at public place. (Para 2, 4,
5, 10)

Held, prosecutrix in F.I.R. admitted that
she was in relation with appellant for last
six months and her age was 20 years and
thus she was major - Allegation of rape in
F.I.R
and
St.ments
of
victim
got
demolished
after
perusal
of
medical
report, wherein doctor opined there was
no external or internal injury found on
private parts of victim, nor doctor has
given
any
definite
opinion regarding
sexual assault and urine pregnancy test
came negative - Both the parties are
consenting party and physical relation was
not
made
forcefully
and
considering
substantial period of detention, impugned
order set aside. (Para 15)

Appeal allowed. (E-13)

List of Cases cited:

## Text

48 INDIAN LAW REPORTS ALLAHABAD SERIES
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 by the
accused that he would marry her, such a
consent can be said to be a consent
obtained on 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 375of the IPC and can be
convicted for the offence under Section 376
of the the IPC."

7. Thus, learned counsel for the
opposite party no. 2 submits that in view of
the judgment rendered by the Hon'ble
Supreme Court, it is not a case of consent.
Thus, it amount to rape and in view of the
judgment of Hon'ble Supreme Court, the
present appeal be rejected.

8. After considering the arguments,
as advanced by learned counsel for the
parties and after perusal of record, this
Court finds that the appellant committed
rape several times with the prosecutrix
either giving some intoxic material or on
some false promise of marriage, even
though as per the version of the First
Information Report, the prosecutrix was
pregnant and was forcefully aborted on the
instance of the present appellant. Anyhow,
the prosecutrix marriage was solemnized
with some other person. There also the
appellant did not leave her free and always
threatened
her
to
give
the
naked
photographs and video to her husband and
to her in-laws and tried to make physical
relation forcefully several times, after the
marriage of the prosecutrix also, that made
the entire life of the prosecutrix as hell.
Thus, she has no option but she requested
the appellant to return all the photographs,
videographs and pen drive but the
appellant refused for the same.

9. Thus, in the opinion of the Court,
the appellant has committed a heinous
crime and he is not entitled to get any
relief by this Court, as was also observed
by the Hon'ble Apex Court in case of
Anurag Soni (supra) and also in case of
Dr.
Dhruvaram
Murlidhar
Sonar
(supra) that if the rape is committed by
playing the fraud and on false promise of
marriage, then the appellant is not entitled
to get any relief. Thus, in view of the
opinion of this Court, the impugned order
of the court below dated 05.09.2022 is
justified. No interference is required by
this Court. The appeal is liable to be
dismissed.

10. Accordingly, the appeal filed by
the appellant is dismissed.

11. File is consigned to record.
----------
(2023) 7 ILRA 48
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.07.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 2378 of 2022

Mohan Yadav @ Vivek Yadav ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Mata Prasad Yadav, Abhishek Singh Yadav,
Shiva Shashank

Counsel for the Respondents:
7 All. Mohan Yadav @ Vivek Yadav Vs. State of U.P. & Anr.
49
G.A.

Criminal Law - Indian Penal Code,1860 -
Sections 342, 376, 504 & 506 - Scheduled
Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989 - Section 3(2)(V) -
Constitution of India, 1950 - Article 21 -
Code of Criminal Procedure, 1973
-
Sections
161,
164
-
Appeal
against
rejection of bail - Malicious intention -
Allegation against appellant that on false
promise
of
marriage,
made
physical
relation
with
prosecutrix
-
Appellant
submitted that prosecutrix was major,
consenting party and knew consequences
that promise of marriage can be broken at
any stage by appellant but she continued
to remain in relation - Appellant further
submitted that as per F.I.R. and St.ment
of prosecutrix, no ingredients under SC/ST
Act was attracted, as incident, happened
in room and not at public place. (Para 2, 4,
5, 10)

Held, prosecutrix in F.I.R. admitted that
she was in relation with appellant for last
six months and her age was 20 years and
thus she was major - Allegation of rape in
F.I.R
and
St.ments
of
victim
got
demolished
after
perusal
of
medical
report, wherein doctor opined there was
no external or internal injury found on
private parts of victim, nor doctor has
given
any
definite
opinion regarding
sexual assault and urine pregnancy test
came negative - Both the parties are
consenting party and physical relation was
not
made
forcefully
and
considering
substantial period of detention, impugned
order set aside. (Para 15)

Appeal allowed. (E-13)

List of Cases cited:

1. Pramod Suryabhan Pawar Vs St. of Mah.,
(2019) 9 SCC 608, (Para 17, 21)

2. Hitesh Verma Vs The St. of Uttrakhand
reported in (2020) 10 SCC, (Para 15)

3. Swaran Singh & ors.Vs St. (2008) 8SCC 435
4. Dataram Singh Vs St. of UP & anr., reported
in (2018) 3 SCC 22

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Shri Mata Prasad Yadav, the
learned counsels for the appellant and Sri
Satendra Kumar Srivastava, the learned
A.G.A. for the State-opposite party and
perused the entire record.

2. The present criminal appeal under
Section 14-A (2) Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act
has
been preferred
against
the
impugned order dated 02.09.2022 passed
by the court of learned Special Judge
(S.C./S.T.
Act),
Sultanpur
in
Bail
Application No. 2800/2022 : Mohan Yadav
Vs. State of U.P., arising out of Case Crime
No. 262/2022, under Sections 342, 376,
504, 506 I.P.C. and under Section 3 (2) (v)
SC/ST Act, Police Station Akhand Nagar,
District
Sultanpur,
whereby
the
bail
application of the appellant has been
rejected.

3. Learned counsel for the appellant
submits that the appellant is innocent and
has been falsely implicated in the present
case. No such incident took place, as
alleged by the prosecutrix in the F.I.R.

4. Learned counsel for the appellant
further submits that as per prosecution
version the prosecutrix and appellant were
in relation with for the last six months and
they loved each other and were ready to
solemnize marriage. He further submits
that the F.I.R. was lodged against the
appellant and one named person and one
unknown person, but after investigation
names of Rajpati Yadav and another person
were dropped and the charge sheet was
filed against the appellant only. The
50 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecutrix in the F.I.R. admitted this fact
that she was in relation with the appellant
for the last six months and the appellant has
promised for marriage and it was a false
promise of marriage and forcefully physical
relation was made. The prosecutrix in F.I.R.
has admitted her age to be 20 years and
thus she is major.

5. Learned counsel for the appellant
further submits that the prosecuterix was
major and she was a consenting party and
knew the consequences very well that the
promise of marriage can be broken at any
stage by the appellant but in spite of
knowing this fact she continued to remain
in relation with the appellant and as per
averment of prosecutrix, the appellant
made physical relation with the prosecutrix,
thus the story appears to be false and
concocted and the present F.I.R. has been
lodged under pressure created by the family
members of the prosecutrix.

6. Learned counsel for the appellant
further submits that the prosecutrix in her
statement recorded under Section 161 and
164 Cr.P.C. repeated the same version of
the F.I.R. but did not dispute this fact that
she was in relation with the appellant for
the last six months and the appellant made
promise of marriage.

7. Learned counsel for the applicant
further submits that the allegation of rape
as levelled in the F.I.R. as well as in the
statements of the victim recorded under
Sections 161 and 164 Cr.P.C. also got
demolished after perusal of medical report
of the victim, wherein concerned doctor has
opined that there is no external or internal
injury found on the private parts of the
victim, nor the doctor has given any
definite opinion regarding sexual assault
and urine pregnancy test came negative. As
per medical report the age of the
prosecutrix is around 20 years.

8. Learned counsel for the appellant
further submits that no such promise was
ever made and even though if any promise
is made with the prosecutrix, she was major
and was knowing the consequences very
well. In support of his arguments, learned
counsel for the appellant has relied upon
the judgment rendered by the Hon'ble
Supreme Court in the case of Pramod
Suryabhan
Pawar
vs.
State
of
Maharashtra, (2019) 9 SCC 608 and
placed reliance upon paras 17 and 21,
which are reproduced hereunder:-

"17. In Uday v State of Karnataka
the complainant was a college going
student when the accused promised to
marry her. In the complainants statement,
she admitted that she was aware that there
would be significant opposition from both
the complainants and accuseds families to
the proposed marriage. She engaged in
sexual intercourse with the accused but
nonetheless kept the relationship secret
from her family. The court observed that in
these circumstances the accuseds promise
to marry the complainant was not of
immediate relevance to the complainants
decision to engage in sexual intercourse
with the accused, which was motivated by
other factors:[(2003) 4 SCC 46].

25. There is yet another difficulty
which faces the prosecution in this case. In
a case of this nature two conditions must be
fulfilled for the application of Section 90
IPC. Firstly, it must be shown that the
consent was given under a misconception
of fact. Secondly, it must be proved that the
person who obtained the consent knew, or
had reason to believe that the consent was
given
in
consequence
of
such
misconception. We have serious doubts that
7 All. Mohan Yadav @ Vivek Yadav Vs. State of U.P. & Anr.
51
the
promise
to
marry
induced
the
prosecutrix to consent to having sexual
intercourse with the appellant. She knew, as
we have observed earlier, that her marriage
with the appellant was difficult on account
of caste considerations. The proposal was
bound to meet with stiff opposition from
members of both families. There was
therefore a distinct possibility, of which she
was clearly conscious, that the marriage
may not take place at all despite the
promise of the appellant. The question still
remains whether even if it were so, the
appellant knew, or had reason to believe,
that the prosecutrix had consented to
having sexual intercourse with him only as
a consequence of her belief, based on his
promise, that they will get married in due
course. There is hardly any evidence to
prove this fact. On the contrary, the
circumstances of the case tend to support
the conclusion that the appellant had
reason to believe that the consent given by
the prosecutrix was the result of their deep
love for each other. It is not disputed that
they were deeply in love. They met often,
and it does appear that the prosecutrix
permitted him liberties which, if at all, are
permitted only to a person with whom one
is in deep love. It is also not without
significance that the prosecutrix stealthily
went out with the appellant to a lonely
place at 12 o'clock in the night. 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
(Emphasis supplied).

21. The allegations in the FIR do
not on their face indicate that the promise
by the appellant was false, or that the
complainant engaged in sexual relations on
the basis of this promise. There is no
allegation in the FIR that when the
appellant
promised
to
marry
the
complainant, it was done in bad faith or
with the intention to deceive her. The
appellants failure in 2016 to fulfil his
promise made in 2008 cannot be construed
to mean the promise itself was false. The
allegations in the FIR indicate that the
complainant was aware that there existed
obstacles to marrying the appellant since
2008, and that she and the appellant
continued to engage in sexual relations
long after their getting married had
become a disputed matter. Even thereafter,
the complainant travelled to visit and
reside with the appellant at his postings
and allowed him to spend his weekends at
her residence. The allegations in the FIR
belie the case that she was deceived by the
appellants promise of marriage. Therefore,
even if the facts set out in the complainants
statements are accepted in totality, no
offence under Section 375 of the IPC has
occurred."

Thus, learned counsel for the
appellant submits that in view of the
judgment rendered by the Hon'ble Supreme
Court, the promise of marriage made by the
appellant to the prosecutrix is in good faith
as per the case set up by the prosecutrix and
it does not amount to rape as there is a
consent of the prosecutrix. From the
perusal of the F.I.R. and the statements of
prosecutrix recorded under Sections 161
and 164 Cr.P.C. it appears that both the
parties are consenting party and it cannot
be said that the physical relation was made
forcefully, thus the appellant has been
implicated with malicious intention.

9. Learned counsel for the appellant
has drawn attention of this Court towards
the judgment of the Hon'ble Apex Court in
the case of Hitesh Verma Vs. The State of
Uttrakhand
reported
in
(2020)
10
SCC,wherein in para 15 relying on the
52 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment passed in Swaran Singh and
others Vs. State (2008) 8SCC 435 has
held as under:

"as per the F.I.R., the allegations
of abusing the informant were within the
four walls of her building. It is not the case
of the informant that there was any member
of the public (nor merely relatives or
friends) at the time of the incident in the
house. Therefore, the basic ingredient that
the words were uttered in any place within
public view is not made out. In the list of
witnesses appended to the charge-sheet,
certain witnesses are named but it could
not be said that those were the persons
present within the four walls of the
building. The offence is alleged to have
taken place within the four walls of the
building. Therefore, in view of the judgment
of this Court in Swaran Singh, it cannot be
said to be a place within public view as
none was said of be present within the four
walls of the building as per the FIR and/or
charge-sheet."

10. Learned counsel for the appellant
further submits that from the averments
made in the F.I.R. and also from perusal of
the statement no ingredients under Section
3 (2) (v) SC/ST Act is attracted against the
appellant, as the incident, as per prosecutrix
happens in a room and no at a public place
or public view.

11. Learned counsel for the appellant
further submits that accused/appellant is
languishing in jail since 03.08.2022, who
has no previous criminal history, and in
case the appellant is enlarged on bail, he
shall not misuse the liberty of bail and he
shall also fully cooperate with the trial. He
has further submitted that there is no
possibility of the appellant to intimidate or
pressurize the witnesses or any other
persons acquainted with the facts of the
present case.

12. For the aforesaid reasons, learned
counsel for the appellant submits that the
instant criminal appeal deserves to be
allowed and the order dated 02.09.2022
passed by the court of learned Special
Judge (S.C./S.T. Act), Sultanpur in Bail
Application No. 2800/2022 : Mohan Yadav
Vs. State of U.P., arising out of Case Crime
No. 262/2022, under Sections 342, 376,
504, 506 I.P.C. and under Section 3 (2) (v)
SC/ST Act, Police Station Akhand Nagar,
District Sultanpur deserves to be set aside
and consequently, the accused/appellant
deserves to be enlarged on bail during
pendency of the trial.

13. Several other submissions in order
to demonstrate the falsity of the allegations
made against the appellant have also been
placed
forth before
the
Court. The
circumstances which, according to the
counsel, led to the false implication of the
accused have also been touched upon at
length. It has been assured on behalf of the
appellant that he is ready to cooperate with
the process of law and shall faithfully make
himself available before the court whenever
required and is also ready to accept all the
conditions which the Court may deem fit to
impose upon him. It has also been pointed
out that the accused is not having any
criminal history and he is in jail since
03.08.2022 and that in the wake of heavy
pendency of cases in the Court, there is no
likelihood of any early conclusion of trial.

14. Per contra, learned A.G.A. has
vehemently
opposed
the
prayer
by
submitting that there is active participation
of
accused/appellant
in
the
crime.
Therefore, the accused/ appellant is not
entitled to be enlarged on bail and the
7 All. Mohan Yadav @ Vivek Yadav Vs. State of U.P. & Anr.
53
instant criminal appeal deserves to be
dismissed. However, he has been unable to
dispute the other factual submissions
advanced by the learned counsel for the
accused/appellant.

15. After perusing the record in the
light of the submissions made at the bar
and after taking an overall view of all the
facts and circumstances of this case, the
nature of evidence, the period of detention
already undergone, unlikelihood of early
conclusion of trial and also in absence of
any convincing material to indicate the
possibility of tampering with the evidence
and considering that the prosecutrix in the
F.I.R. admitted this fact that she was in
relation with the appellant for the last six
months and has admitted her age to be 20
years and thus she is major, the allegation
of rape as levelled in the F.I.R. as well as in
the statements of the victim recorded under
Sections 161 and 164 Cr.P.C. also got
demolished after perusal of medical report
of the victim, wherein concerned doctor has
opined that there is no external or internal
injury found on the private parts of the
victim, nor the doctor has given any
definite opinion regarding sexual assault
and urine pregnancy test came negative,
From the perusal of the F.I.R. and the
statements of prosecutrix recorded under
Sections 161 and 164 Cr.P.C. it appears that
both the parties are consenting party and it
cannot be said that the physical relation
was
made
forcefully
and
further
considering the fact that appellant is in jail
since 03.08.2022 and has now by done a
substantial period of detention and further
considering the larger mandate of the
Article 21 of the Constitution of India and
the law laid down by the Hon'ble Apex
Court in the case of Dataram Singh Vs.
State of UP and another, reported in
(2018) 3 SCC 22, Pramod Suryabhan
Pawar vs. State of Maharashtra, (2019) 9
SCC 608, Hitesh Verma Vs. The State of
Uttrakhand reported in (2020) 10 SCC,
this Court is of the view that the learned
court below has failed to appreciate the
material available on record, both the
impugned orders passed by the trial court
are liable to be set aside.

16. Accordingly, the appeal is
allowed. Consequently, the order dated
02.09.2022 passed by the court of learned
Special Judge (S.C./S.T. Act), Sultanpur in
Bail Application No. 2800/2022 : Mohan
Yadav Vs. State of U.P., arising out of Case
Crime No. 262/2022, under Sections 342,
376, 504, 506 I.P.C. and under Section 3 (2)
(v) SC/ST Act, Police Station Akhand
Nagar,
District
Sultanpur
is
hereby
reversed and set aside.

17. Let the appellant, Mohan Yadav,
be enlarged on bail in Case Crime No.
262/2022, under Sections 342, 376, 504,
506 I.P.C. and under Section 3 (2) (v)
SC/ST Act, Police Station Akhand Nagar,
District Sultanpur with the following
conditions:-

(i) The appellant shall furnish a
personal bond with two sureties each of
like amount to the satisfaction of the court
concerned.

(ii) The appellant shall appear and
strictly comply following terms of bond
executed under section 437 sub section 3 of
Chapter- 33 of Cr.P.C.:-

(a) The appellant shall attend in
accordance with the conditions of the bond
executed under this Chapter.

(b) The appellant shall not
commit an offence similar to the offence of
which he is accused, or suspected, of the
commission of which he is suspected, and
54 INDIAN LAW REPORTS ALLAHABAD SERIES

(c) The
appellant
shall
not
directly or indirectly make any inducement,
threat or promise to any person acquainted
with the facts of the case so as to dissuade
him from disclosing such facts to the Court
or to any police officer or tamper with the
evidence.

(iii) The appellant shall cooperate
with investigation /trial.

(iv) The appellant shall file an
undertaking to the effect that he shall not
seek any adjournment on the dates fixed for
evidence when the witnesses are present in
court. In case of default of this condition, it
shall be open for the trial court to treat it as
abuse of liberty of bail and pass orders in
accordance with law.

(v) The appellant shall remain
present before the trial court on each
date fixed, either personally or through
his counsel. In case of his absence, the
trial court may proceed against him
under Section 229-A of the Indian Penal
Code.

(vi) In case, the appellant
misuses the liberty of bail during trial, in
order
to
secure
his
presence,
proclamation under section 82 Cr.P.C. is
issued and the appellant fails to appear
before the court on the date fixed in such
proclamation, then, the trial court shall
initiate proceedings against him, in
accordance with law, under Section 174A of the Indian Penal Code.

(vii) The appellant shall remain
present, before the trial court on the dates
fixed for (i) opening of the case, (ii)
framing of charge and (iii) recording of
statement under Section 313 Cr.P.C. If in
the opinion of the trial court absence of the
appellant is deliberate or without sufficient
cause, then it shall be open for the trial
court to treat such default as abuse of
liberty of bail and proceed against him in
accordance with law.

18. The trial court is also directed to
expedite the trial of the aforesaid case,
within a period of one year from today, by
following the provisions of Section 309
Cr.P.C., strictly without granting any
unnecessary adjournments to the parties, in
case there is no other legal impediment.
----------
(2023) 7 ILRA 54
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.07.2023

BEFORE

THE HON'BLE MRS. RENU AGARWAL, J.

Criminal Revision No. 2 of 2023

Ram Prakash Achari ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Ashish Chaturvedi, Anilesh Tewari, Desh
Deepak Singh

Counsel for the Opposite Parties:
G.A., Raj Kumar

(A) Criminal Law - Family Court Act, 1984
- Section 19(4) - Revision, The Hindu
Marriage Act, 1955 - Section 13 - Divorce ,
The Code of criminal procedure, 1973 -
section 125 - Order for maintenance of
wives, children and parents, Domestic
Violence Act, 2005 - Section12 - Dowry
prohibition Act,1961 - Section 3/4 ,
Indian Penal Code, 1860 - Sections 498-A,
323, 504 - as per Hindu Marriage Act,
1955, the second marriage is void and
such marriages are illegal as per the
provisions of the Act, but still they are not
immoral and financially dependent women
cannot be denied maintenance on this
ground - interpretation of expression wife
- broad and expansive interpretation
should be give to the term wife - include
even those cases where a man and woman