# Raghav Kumar v. State of U.P. & Anr

- **Citation:** (2024) 9 ILRA 428
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-10
- **Case number:** Application U/S 482 No. 9501 of 2019
- **Bench:** Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raghav-kumar-v-state-of-u-p-anr-52357
- **Pages:** 8

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Section 376 - Rape - Criminal Procedure
Code, 1973 - Section 482 - Quashing of
charge-sheet - Scope of interference by High Court
- Principles reiterated - Allegation of non-consensual
physical relationship, initially based on cheating and
threat
perception
-
Subsequent
consensual
relationship under threat - Prima facie offence under
Section 376 IPC made out - Investigation concluded
no substantial evidence of forcible rape, but threat
and manipulation established -Proceedings allowed
to continue in trial court.

Application dismissed. (E-9)

List of Cases cited:

## Text

428 INDIAN LAW REPORTS ALLAHABAD SERIES
---------
(2024) 9 ILRA 428
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.09.2024

BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.

Application U/S 482 No. 9501 of 2019

Raghav Kumar ...Applicant
 Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Gaurav Kakkar

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

Criminal Law - Indian Penal Code, 1860 -
Section 376 - Rape - Criminal Procedure
Code, 1973 - Section 482 - Quashing of
charge-sheet - Scope of interference by High Court
- Principles reiterated - Allegation of non-consensual
physical relationship, initially based on cheating and
threat
perception
-
Subsequent
consensual
relationship under threat - Prima facie offence under
Section 376 IPC made out - Investigation concluded
no substantial evidence of forcible rape, but threat
and manipulation established -Proceedings allowed
to continue in trial court.

Application dismissed. (E-9)

List of Cases cited:

1. Dhruvaram Murlidhar Sonar Vs St. of Mah.
(2019) 18 SCC 191
2. Shivashankar Vs St. of Karn. & ors. (2019) 18
SCC 204

3. Pramod Suryabhan Pawar Vs the St. of Mah.
& anr.: (2019) 9 SCC 608

4. Jiyaullah Vs St. of U.P. & anr.(Application u/S
482 No. 5419 of 2021)
5. Kaini Rajan Vs St. of Kerala, (2013) 9 SCC
113

6. Anurag Soni Vs St. of Chhattisgarh, (2019) 13
SCC 1

7. Deepak Gulati Vs St. of Har., (2013) 7 SCC
675

(Delivered by Hon'ble Anish Kumar
Gupta, J.)

1. Heard Sri Gaurav Kakkar, learned
counsel for the applicant and Sri Pankaj
Srivastava, learned A.G.A. for the State.
None appears on behalf of the opposite
party no.2 even in the revised call to press
the instant application.

2. The instant application under
Section 482 Cr.P.C. has been filed seeking
quashing
of
the
charge-sheet
dated
13.12.2018 in Case No. 6910204 of 2018
arising out of Case Crime No. 211 of 2018
u/S 504, 506, 376 I.P.C., Police Station-
Mahila Thana, District- Agra, pending in
the court of learned District and Sessions
Judge, Agra.

FACTS

3. The facts in brief are that the
opposite
party
no.2
herein
initially
submitted a complaint dated 12.11.2018
before the Additional Director General of
Police,
Agra
Zone,
Agra,
seeking
registration of the F.I.R. and strict action
against the applicant herein. On the
aforesaid complaint, as per the direction of
the Additional Director General of Police,
the instant F.I.R. has been registered at
Women
Police
Station,
Agra,
on
15.11.2018, whereby the Case Crime No.
211 of 2018 was registered for the offences
under Sections 504, 506, 328, 34, 376
9 All. Raghav Kumar Vs. State of U.P. & Ors.
429
I.P.C. against the applicant and the entire
family members of the applicant.

4. As per the F.I.R., both the applicant
as well as the opposite party no.2 are highly
educated persons and belong to a higher
social status. Both of them were studying
together in Agra and used to meet each
other. The allegation in the F.I.R. is that
once in the year, 2016, the entire family
members of the applicant came to the house
of the opposite party no.2 and proposed the
marriage of applicant with the opposite
party no.2. The aforesaid proposal was
rejected by the opposite party no.2.
Therefore, all the family members of the
applicant have returned back. However, the
said applicant continued to talk with the
applicant herein. The opposite party no.2
herein went to Delhi for her studies.
Subsequently, after about a year on
16.10.2017, in the morning at 10:00 A.M.
the applicant went to the house of the
opposite party no.2 and informed her about
the illness and hospitalization of his mother
and asked the opposite party no.2 to donate
the blood. In view thereof, the opposite
party no.2 accompanied the applicant
herein, however, instead of taking her to
the hospital the applicant took her to his
house, where, except the mother all other
family members met and welcomed her in
the house. The sisters-in-law (bhabhis) of
the applicant herein went in the kitchen to
bring tea for her. Subsequently, applicant's
elder brother Ashish brought tea and
brothers- Ketan Kumar and Atul brought
biscuits and namkeen etc. After consuming
the tea, she became unconscious. When she
regained her consciousness, she found
herself without clothes and she realized that
she has been raped. Then, the aforesaid
sisters-in-law of the applicant brought
clothes of the opposite party no.2, then, she
wore the said clothes. Then, the opposite
party no.2 told them that she will complain
about this incident to the police. Then, the
applicant putting the revolver on his head
told her that he loves her and wanted to
marry her, if she refused, he will commit
suicide right then. Then, all the family
members came inside the room and called
her a bride and at the same time all the
persons shown the nude pictures of the
opposite party no.2, which they have taken
during the aforesaid incident. Thereby, the
opposite
party
no.2
got
frightened.
Thereafter, on the basis of the aforesaid
nude pictures taken by the applicant and
other
family
members,
they
started
blackmailing the opposite party no.2. In
such a compelling circumstances, the
opposite party no.2 agreed to marry the
applicant herein. Thereafter, after sometime
all the family members except the father of
the applicant herein came to the house of
the opposite party no.2 and a golden ring
was given to the opposite party no.2.
Thereafter, under the pretext of marriage
the applicant started physical exploitation
of the opposite party no.2 by taking her at
different places and hotels and on one
occasion he has filled vermilion (स िंदूर) in
parting of her hair (म िंग). Thereafter, the
family members of the applicant took the
opposite party no.2 in various relations and
introduced her as the wife of the applicant
and started exchanging gifts. Subsequently,
the parents of the opposite party no.2 also
agreed to marry the opposite party no.2
with the applicant herein. Subsequently, the
opposite party no.2 went to Delhi for
preparation of IAS Exams and also started
doing private job there. The applicant also
came there and continued to exploit the
opposite party no.2 physically. Thereupon,
after physical exploitation he used to take
all the salary of the opposite party no.2
forcibly. Fed up with all this, the opposite
party no.2 left the job and came back to her
430 INDIAN LAW REPORTS ALLAHABAD SERIES
house and the last time the applicant herein
established physical relationship with the
opposite party no.2 at the house of the
opposite party no.2. Subsequently thereto,
when the opposite party no.2 pressurized
the applicant to marry the opposite party
no.2, then, he started avoiding the same and
told the opposite party no.2 that once they
had gone with a proposal to marry the
opposite party no.2, then, she has rejected
the proposal of marriage and thereby she
has insulted him and his family members,
therefore, by doing the aforesaid incidents
as narrated hereinabove, they have taken a
revenge of that insult committed by the
opposite party no.2. Now, they will not
marry the applicant with the opposite party
no.2. The applicant also threatened her of
dire consequences and told that she should
commit suicide. Thereafter, he switched off
his phone. When she called the mother of
the applicant she also threatened her that if
she will make any complaint, poster of her
nude pictures shall be placed in the entire
locality of the opposite party no.2. On the
basis of the aforesaid narration of the facts
in the F.I.R. she has asked for a strict action
against the applicant and the entire family
members of the applicant.

5. In view of the aforesaid F.I.R., a
detailed investigation was carried out by
the Investigation Agency. During the
investigation, the statements under Sections
161 and 164 Cr.P.C. of the opposite party
no.2 was recorded and the medical
examination of the opposite party no.2 was
also conducted. In the medical examination
no forcible act of rape was found to be
committed on the opposite party no.2 and
no injury of any sort was found on the body
of the opposite party no.2. In her 164
Cr.P.C. statement, she has tried to improve
the case by adding the allegation of
insertion of a bottle in her private part.
However, the same was disbelieved by the
Investigation Agency and the offence under
Section 377 I.P.C. was not added in the
charge-sheet, specifically relying upon the
F.I.R. and 161 Cr.P.C. statement, which
was recorded under the videography.
During the investigation, except the victim
even the parents of the opposite party no.2
have not supported any allegation of rape,
however, the parents of the opposite party
no.2 have admitted that there was a
continuous
relationship
between
the
applicant and the opposite party no.2. The
mother of the opposite party no.2 has
categorically admitted that the applicant
and the opposite party no.2 both were in
very deep relationship with one another and
the applicant as well as the opposite party
no.2 used to frequently move together at
any place of their choice as per the
averments made in the F.I.R. as well as 161
Cr.P.C. statement. She has categorically
admitted that the applicant used to take her
to various hotels and they used to stay there
and the applicant also used to get
decorations to celebrate the memorable
moments. On the request of the opposite
party no.2 the Investigation Officer has also
visited the hotels concerned where the
receptionist has identified her and has told
that the opposite party no.2 and the
applicant used to stay there in the hotel and
the record was also produced by the
receptionist of the hotel. The doctor was
also examined during the investigation,
who has examined the victim/opposite
party no.2 and he has also stated that no
element of forcible sexual activity was
found on the body of the opposite party
no.2.

6. After due investigation, the chargesheet was filed on 13.12.2018 only against
the applicant herein for the offences under
Sections 376, 504, 506 I.P.C. and the
9 All. Raghav Kumar Vs. State of U.P. & Ors.
431
names of all other accused in the F.I.R.
were dropped by the Investigation Officer.
Various witnesses during the investigation
have deposed that the opposite party no.2
used to visit the house of the applicant,
when the other family members were not
present in the house.

7. Therefore, from the entire material
available on record, the sum and substance
of the allegations made by the opposite
party no.2 is that the applicant and the
opposite party no.2 both were adults and
highly educated persons. The applicant
used to study together. The applicant has
developed liking towards the opposite party
no.2, which was intimated by him to the
other female friends of both the parties and
as
per
the
allegation
the
applicant
alongwith other family members have
visited the house of the opposite party no.2,
with a proposal to marry the opposite party
no.2, however, the aforesaid proposal was
rejected by the opposite party no.2,
thereupon, the applicant and his family
members felt insulted and thereupon after
about one year of the said rejection by the
opposite party no.2, the applicant has taken
her to his house on the pretext of the illness
of his mother. Thereupon, in the house in
presence and in collusion with the other
family
members
she
was
given
an
intoxicated tea which was consumed by the
opposite party no.2, whereupon, she
became
unconscious
and
when
she
regained her consciousness she found
herself without clothes and the clothes were
given by the sisters-in-law of the applicant
and she was shown her nude pictures and
thereafter, the applicant on the basis of the
said nude pictures, continued to have
physical relationship with the opposite
party no.2 by blackmailing her and
subsequently, the opposite party no.2 has
also accepted the relationship and she was
in intimate relationship with the applicant
herein continuously for a long period of
time and she has never raised any objection
to such relationship and it is only when the
applicant and his family members had
refused to marry her, the instant complaint
has been filed by the opposite party no.2.

SUBMISSION BY APPLICANT

8. Learned counsel applicant submits
that applicant and the opposite party no.2
were known to each other and were
studying together and both were preparing
for the Civil Services Examination. They
developed
a
consensual
physical
relationship
and
such
relationship
continued for a long period of time. Even
as per allegations in the F.I.R. such
relationship continued for more than a year.

9. Learned counsel for the applicant
has also relied upon the averments in the
F.I.R. as well as 164 Cr.P.C. statement and
also the statement of the parent of the
opposite party no.2, to suggest that both the
applicant and the opposite party no.2 were
in consensual physical relationship with
one another. Therefore, learned counsel for
the applicant submits that since it was a
longstanding
continuous
consensual
physical relationship between the parties,
therefore, no offence whatsoever under
Section 376 I.P.C. can be said to have been
made out against the applicant herein.

10. Learned counsel for applicant has
also relied upon the judgements of the
Apex Court in Dhruvaram Murlidhar
Sonar vs. State of Maharashtra : (2019)
18 SCC 191, Shivashankar vs. State of
Karnataka and Ors. (2019) 18 SCC 204,
Pramod Suryabhan Pawar vs. the State of
Maharashtra and Another : (2019) 9 SCC
608 and the judgement of this Court in
432 INDIAN LAW REPORTS ALLAHABAD SERIES
Jiyaullah vs. State of U.P. and Another
(Application u/S 482 No. 5419 of 2021).

SUBMISSION BY A.G.A.

11. Per contra, learned A.G.A.
submits
that
the
inception
of
the
relationship between the parties is based on
cheating and it was a forcible act on the
part of the applicant herein, for which no
consent was there on the part of the
opposite party no.2. Therefore, prima facie
an offence under Section 376 I.P.C. is
made
out.
However,
the
subsequent
relationship between the parties was due to
the threat perception created by the
applicant
and
his
family
members.
Therefore, even if there was subsequent
relationship between the parties and the
same cannot be said to be a consensual
relationship but was a relationship under
threat perception created by the applicant
and his family members.

ANALYSIS

12. Having heard the submissions
made by learned counsel for the parties,
this Court has carefully gone through the
record of the case.

13. Learned counsel for the applicant
has submitted that since it was a
longstanding
continuous
consensual
relationship between the parties, no offence
whatsoever under Section 376 I.P.C. can be
said to have been made out against the
applicant
herein.
In
support
of
his
submissions
learned
counsel
for
the
applicant has relied upon the judgements of
Apex Court in Dhruvaram Murlidhar
Sonar (supra), Shivashankar (supra),
Pramod Suryabhan Pawar (supra) and the
judgement of this Court in Jiyaullah
(supra).

14. Before proceeding further, it
would be relevant to note the provisions of
Section 375 I.P.C. as relevant to the instant
case, which reads as under:

"375. Rape.- A man is said to
commit "rape" if he-

1. penetrates his penis, to any
extent, into the vagina, mouth, urethra or
anus of a woman or makes her to do so
with him or any other person; or

2. inserts, to any extent, any
object or a part of the body, not being the
penis, into the vagina, the urethra or anus
of a woman or makes her to do so with him
or any other person; or

3. manipulates any part of the
body of a woman so as to cause penetration
into the vagina, urethra, anus or any part
of body of such woman or makes her to do
so with him or any other person; or

4. applies his mouth to the
vagina, anus, urethra of a woman or makes
her to do so with him or any other person,
under the circumstances falling under any
of the following seven descriptions:-

Firstly- against her will.

Secondly- Without her consent.

Thirdly-..............

Fourthly-............

Fifthly-...............

Sixthly-...............

Seventhly-.........."

15. It would be further relevant to
note provisions of Section 90 of I.P.C.,
which deals with the consent given under
fear or misconception, which reads as
under:

"90. 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
9 All. Raghav Kumar Vs. State of U.P. & Ors.
433
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."

16. Therefore, a man establishes a
sexual relationship with a woman against
her will and without her consent is said to
have committed rape on the woman.
However, if a man establishes sexual
relationship with a women with her
consent, then, such sexual activity would
not amounts to rape. However, if such
consent was given by the woman under fear
or misconception, such sexual activity with
such tainted consent would amounts to
rape.

17. In Kaini Rajan v. State of Kerala,
(2013) 9 SCC 113, the Apex Court has held
that the consent for the purpose of Section
375 I.P.C. requires voluntary participation
not only after the exercise of intelligence
based on the knowledge of the significance
of the morality, quality of the act but after
fully exercising the choice between the
resistance and assent whether there was
consent or not is to be ascertained only
after
careful
study
of
the
relevant
circumstances.

18. In Anurag Soni v. State of
Chhattisgarh, (2019) 13 SCC 1, the Apex
Court has held as under:

"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 by the
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 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 IPC and can be convicted for
the offence under Section 376 IPC."

19. In Deepak Gulati v. State of
Haryana, (2013) 7 SCC 675, the Apex
Court while dealing with the consent for
the offence under Section 375 I.P.C. has
held that the Court must examine whether
the consent involved was given after
wholly understanding the nature and
consequence of sexual indulgence. There
may be a case where the prosecutrix agrees
to have sexual intercourse on account of
her love and passion for the accused and
not solely on account of misrepresentation
made to her by the accused.

20. In Pramod Suryabhan Pawar
(supra), while dealing with the consent for
the offence under Sections 375, 376 I.P.C.
the Apex Court has observed as under:

"18. To summarise the legal
position that emerges from the above cases,
the "consent" of a woman with respect to
Section 375 must involve an active and
reasoned
deliberation
towards
the
proposed act. To establish whether the
"consent"
was
vitiated
by
a
"misconception of fact" arising out of a
434 INDIAN LAW REPORTS ALLAHABAD SERIES
promise to marry, two propositions must be
established. The promise of marriage must
have been a false promise, given in bad
faith and with no intention of being
adhered to at the time it was given. The
false promise itself must be of immediate
relevance, or bear a direct nexus to the
woman's decision to engage in the sexual
act."

21.

It
was
further
held
that
misconception of fact must be a fact which
had an immediate relevance to the consent
given by the prosecutrix.

22. Thus, in the light of the
judgements of the aforesaid position of law,
if the facts of the instant case are examined,
we will find that though the applicant and
the opposite party no.2 were friends, the
opposite party no.2 had never agreed for
any relationship with the applicant other
than the friendship and that is apparent
from the fact that initially the opposite
party no.2 has rejected the proposal of
marriage with the applicant. However, she
was continuously in talking terms with the
applicant. As per the allegations in the
F.I.R., which are supported in her 161
Cr.P.C. statement as well as in her 164
Cr.P.C. statement, the applicant herein has
taken opposite party no.2 to his house on
the pretext of illness and hospitalization of
his mother where she has been given tea
which was intoxicated and after consuming
the said tea the opposite party no.2 became
unconscious and she was sexually assaulted
without her consent and nude pictures of
the opposite party no.2 were taken,
thereafter, she was blackmailed to give
consent to the relationship. Therefore, for
the initial incident as alleged in the F.I.R.
there was no consent on the part of the
opposite party no.2 herein. Therefore, the
offence of rape is prima facie constituted
against
the
applicant,
however,
the
subsequent relationship of the applicant
with the opposite party no.2 was initially
under threat perception created by the
applicant and his family members and
subsequently a promise of marriage was
also stated to have been given by the
applicant, which was accepted by the
opposite party no.2 under the threat
perceptions created by the applicant and his
family members. However subsequently,
they are stated to have been in consensual
relationship for sufficiently a long period of
time and applicant and his family member
have refused to marry the opposite party
no.2, the instant F.I.R. has been lodged and
the fact that they were in continuous
physical
relationship
is
sufficiently
established during the investigation and
even by the photographs annexed as
Annexure '21' in the instant application,
which has also been found established
during
the
investigation
from
the
examination of the hotel staff where they
used to stay.

CONCLUSION

23. Therefore, in the considered
opinion of this Court since the initial
relationship
was
established
by
the
applicant with an element of cheating,
threat etc., against the will of the opposite
party no.2, prima facie an offence under
Section 376 I.P.C. is made out against the
applicant.
Though,
the
subsequent
relationship, which appears to be a
consensual relationship under the promise
of marriage, however, such consent is also
stated to be given by the opposite party
no.2 initially under the threat perception
created by the applicant herein. Therefore,
in the considered opinion of this Court the
judgements relied upon by the applicant in
Shivashankar (supra), Pramod Suryabhan
9 All. Mritunjay Kumar & Ors. Vs. State of U.P. & Anr.
435
Pawar (supra) and Jiyaullah (supra) are
of no help to the applicant, in view of the
initial act committed against the will of the
opposite party no.2. Therefore, this Court
does not find any good reason to quash the
proceedings as prayed by the applicant, in
view thereof, the instant application is
accordingly dismissed.

24. However, the observation made
hereinabove are made only for the purpose
of deciding the instant application and the
trial court shall not be influenced by any of
the observations made hereinabove and
shall proceed in accordance with law.
---------
(2024) 9 ILRA 435
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.09.2024

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Application U/S 482 No. 13307 of 2020

Mritunjay Tiwari & Ors. ...Applicants
 Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Anand Pal Singh, Rajiv Lochan Shukla

Counsel for the Opposite Parties:
Bishram Tiwari, G.A., Vimal Kumar Pandey

Corpus Delicti- Applicants alleged that the
victim (wife) ran away from their house and
despite searched for days, she was not locatedcomplainant (father of the victim) alleged that
his daughter (wife of applicant No.1) died under
otherwise than normal circumstances and her
dead body was concealed by applicants. -
evidence on record that applicant No.1 has illicit
relationship with co-accused- and it was
repeatedly objected by his wife - in given
circumstances to establish corpus delicti is not
necessary - at this stage High Court cannot
undertake to conduct a mini trial.

Application dismissed. (E-9)

List of Cases cited:

1. Sevaka Perumal Vs St. of T.N., (1991) 3 SCC 471
2. Mani Kumar Thapa Vs St. of Sikkim, (2002) 7
SCC 157

3. Sanjay Rajak Vs St. of Bihar, (2019) 12 SCC
552

4. Rama Nand Vs St. of H.P. [Rama Nand Vs St.
of H.P., (1981) 1 SCC 511 : 1981 SCC (Cri) 197

5. Priyanka Jaiswal Vs St. of Jharkhand & ors.,
2024 SCC OnLine SC 685

6. Akhil Sharda , 2022 SCC OnLine SC 820

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Heard Sri Rajiv Lochan Shukla,
learned counsel for applicants, Sri Vimal
Kumar
Pandey,
learned
counsel
for
opposite party No.2 and Sri Rakesh Kumar
Mishra, learned A.G.A. for State.

2. Applicant No.1 got married with
Manju
Tiwari
(daughter
of
the
complainant) in 2014, whereas other
applicants are relatives of applicant No.1. It
is the case of applicants that on 23.09.2016
at about 9.00 p.m., Smt. Manju Tiwari ran
away from their house and despite searched
for days, she was not located. Applicants
have lodged missing report as well as
publications were made in newspaper also.

3. The complainant side was also
making efforts along with applicants side to
search her but all attempts were failed. In
the aforesaid circumstances, complainant
after about six weeks filed an application