# Sanjiv Gupta Revisionist v. State of U.P. & Anr

- **Citation:** (2023) 12 ILRA 851
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-06
- **Case number:** Criminal Revision No. 2618 of 2019
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjiv-gupta-revisionist-v-state-of-u-p-anr-49555
- **Pages:** 17

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 323, 377 & 498-A - Dowry
Prohibition Act, 1961 - Section 4 - Code
of Criminal Procedure, 1973 - Sections
397 & 401 - Criminal Law (Amendment)
Act, 2013 - Section 375 - Protection of
Children from Sexual Offences Act, 2012 -
Hindu Marriage Act, 1955 - Section 13(1) -
Unnatural Sex - Matrimonial Cruelty - Revisional
Jurisdiction - Concurrent Findings - Marital
Rape

The revisionist, Sanjiv Gupta, challenged the
judgment of the Additional Chief Judicial
Magistrate, Ghaziabad, dated 2016, convicting
him under Sections 498-A, 323, 377 IPC and
Section 4 of the Dowry Prohibition Act, and the
appellate court's order dated 30.05.2019, which
affirmed convictions under Sections 498-A, 323,
and 377 IPC but set aside the conviction under
Section 4, reducing the sentence under Section
377 from five to four years. The prosecution
alleged that the revisionist, married to the
prosecutrix (respondent no. 2) on 01.07.2012,
subjected her to cruelty, physical assault, and
non-consensual unnatural sex (sodomy and oral
sex) from 23.07.2012 to 14.08.2012, and on
09.08.2013
at
her
parental
home.
The
revisionist claimed the FIR was a counterblast to
his prior complaint against the prosecutrix's
family and denied physical relations due to her
medical condition. Held: (1) The revision was
partly allowed. (2) The conviction and sentence
852 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 377 IPC were set aside, following
Umang Singhar Vs St. of MP, which held that
non-consensual unnatural sex between husband
and wife is not an offence under Section 377
post the 2013 amendment to Section 375 IPC,
as it includes such acts and excludes marital
rape for wives above 18 years, rendering
Section 377 redundant in such cases. (3)
Convictions under Sections 498-A and 323 IPC
were affirmed, supported by the prosecutrix's
unrefuted testimony of being slapped on the
first night of marriage and subjected to cruelty,
corroborated by the divorce decree under
Section 13(1) of the Hindu Marriage Act for
matrimonial cruelty. (4) No medical evidence
supported the allegations of unnatural sex or
physical assault on 09.08.2013, and the absence
of injuries or spermatozoa was deemed natural
after a year, but the prosecutrix's testimony for
the period 23.07.2012 to 14.08.2012 was
reliable. (5) The sentence under Sections 498-A
and 323 IPC was reduced to the period already
undergone,
considering
the
revisionist's
circumstances and partial disbelief of dowry
allegations. (6) The revisionist was to be
released upon depositing fines or serving default
sentences, unless wanted in another case.
Revisional jurisdiction under Sections 397/401
Cr.P.C. was exercised to correct the legal error in
the Section 377 conviction without reappraising
evidence, as per K. Chinnaswami Reddy Vs St.
of Andhra Pradesh and Vinay Tyagi Vs Irshad.

Case Law cited:

## Text

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12 All. Sanjiv Gupta Vs. State of U.P. & Anr.
851
no.07/75 on 20.06.2023 and asked the
petitioner to vacate the premises vide order
dated 04.07.2023. By doing so there was no
illegality on behalf of the University in
asking the petitioners to vacate the
premises. Section 60 (b) of the Easement
Act will not be attracted in this case as the
license expressly laid down that in breach
of certain conditions the license was
revocable.
Since
the
petitioners
had
admitted that they were carrying out
activities, which were contrary to the aims
and objects for which the premises was
given to them. Hence, the license was
rightly revoked by the respondent no.2 and
the petitioners cannot claim any benefit
under the Easement Act.

The last contention of the petitioners
that they cannot be evicted even if the writ
petition is dismissed and the respondents
have to take separate legal action in the
Court of law is also not tenable as the
petitioners
have
invited
the
judicial
pronouncement and once this Court finds
that the case set up by the petitioners lacks
merit
is
liable to be rejected, the
requirement of "due process of law" stands
fulfilled. Even the Hon'ble Apex Court has
held that in event "recourse course of law"
stipulation stands satisfied when a judicial
determination is made with regards to the
first party's proactive action, hence, there
will be no need for the respondents to
initiate separate legal action for eviction of
the petitioners.

37. Accordingly, the instant writ
petition is devoid of merit and, is hereby
dismissed.
----------
(2023) 12 ILRA 851
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.12.2023
BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 2618 of 2019

Sanjiv Gupta ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Arvind Kumar Singh, Sri Arvind Kumar
Singh, Sri Jitendra Singh, Kirti Singh

Counsel for the Opposite Parties:
Govt. Advocate, Sri Nitin Gupta

Criminal Law - Indian Penal Code, 1860 -
Sections 323, 377 & 498-A - Dowry
Prohibition Act, 1961 - Section 4 - Code
of Criminal Procedure, 1973 - Sections
397 & 401 - Criminal Law (Amendment)
Act, 2013 - Section 375 - Protection of
Children from Sexual Offences Act, 2012 -
Hindu Marriage Act, 1955 - Section 13(1) -
Unnatural Sex - Matrimonial Cruelty - Revisional
Jurisdiction - Concurrent Findings - Marital
Rape

The revisionist, Sanjiv Gupta, challenged the
judgment of the Additional Chief Judicial
Magistrate, Ghaziabad, dated 2016, convicting
him under Sections 498-A, 323, 377 IPC and
Section 4 of the Dowry Prohibition Act, and the
appellate court's order dated 30.05.2019, which
affirmed convictions under Sections 498-A, 323,
and 377 IPC but set aside the conviction under
Section 4, reducing the sentence under Section
377 from five to four years. The prosecution
alleged that the revisionist, married to the
prosecutrix (respondent no. 2) on 01.07.2012,
subjected her to cruelty, physical assault, and
non-consensual unnatural sex (sodomy and oral
sex) from 23.07.2012 to 14.08.2012, and on
09.08.2013
at
her
parental
home.
The
revisionist claimed the FIR was a counterblast to
his prior complaint against the prosecutrix's
family and denied physical relations due to her
medical condition. Held: (1) The revision was
partly allowed. (2) The conviction and sentence
852 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 377 IPC were set aside, following
Umang Singhar Vs St. of MP, which held that
non-consensual unnatural sex between husband
and wife is not an offence under Section 377
post the 2013 amendment to Section 375 IPC,
as it includes such acts and excludes marital
rape for wives above 18 years, rendering
Section 377 redundant in such cases. (3)
Convictions under Sections 498-A and 323 IPC
were affirmed, supported by the prosecutrix's
unrefuted testimony of being slapped on the
first night of marriage and subjected to cruelty,
corroborated by the divorce decree under
Section 13(1) of the Hindu Marriage Act for
matrimonial cruelty. (4) No medical evidence
supported the allegations of unnatural sex or
physical assault on 09.08.2013, and the absence
of injuries or spermatozoa was deemed natural
after a year, but the prosecutrix's testimony for
the period 23.07.2012 to 14.08.2012 was
reliable. (5) The sentence under Sections 498-A
and 323 IPC was reduced to the period already
undergone,
considering
the
revisionist's
circumstances and partial disbelief of dowry
allegations. (6) The revisionist was to be
released upon depositing fines or serving default
sentences, unless wanted in another case.
Revisional jurisdiction under Sections 397/401
Cr.P.C. was exercised to correct the legal error in
the Section 377 conviction without reappraising
evidence, as per K. Chinnaswami Reddy Vs St.
of Andhra Pradesh and Vinay Tyagi Vs Irshad.

Case Law cited:

1. Suraj Singh alias Sonu Suraj Singh, (2017) 4
Supreme 375

2. Vijay alias Chinee Vs St. of MP, (2010) 8 SCC
191

3. Namdev Vs St. of Mah., (2007) 14 SCC 150

4. Harbans Kaur Vs St. of Har., (2005) 9 SCC
195

5. Bheerulal & anr. Vs St. of Raj., (2009) 66 ACC
997 (SC)

6. Dhanj Singh Vs St. of Pun., (2004) 3 SCC 654

7. Khem Ram Vs St. of H.P., (2018) 1 SCC 202

8. Rahul Mishra Vs St. of Uttarakhand, AIR 2015
SC 3043

9. Gannath Patnayak Vs St. of Orissa, (2002) 2
SCC 619

10. Fiona Shrikhande Vs St. of Mah., (2013) 14
SCC 44

11. K. Chinnaswami Reddy Vs St. of Andhra
Pradesh, AIR 1962 SC 1788

12. Vinay Tyagi Vs Irshad, (2013) 5 SCC 762

13. Amit Kapoor Vs Ramesh Chander, (2012) 9
SCC 329

14. Sucha Singh Vs St. of Punjab, (2003) 7 SCC
643

15. Umang Singhar Vs St. of MP & anr., M.Cr.C.
No. 59600 of 2022, decided on 21.09.2023 (MP
HC)

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. By means of instant criminal
revision, the revisionist/ accused has
assailed the judgement of learned A.C.J.M.,
court no. 8, Ghaziabad in Criminal Case
No. 75 of 2016 arising out of Case Crime
no. 331 of 2013 under Sections 498-A, 323,
377 IPC and Section 4 of D.P. Act, P.S.
Link
Road,
District
Ghaziabad,
the
revisionist has been convicted of charge
under section 498-A, 323, 377 IPC and
Section 4 of D.P. Act and sentenced him to
two years rigorous imprisonment and Rs.
30,000/- fine for charge under Section 498A
IPC
and
five
years
rigorous
imprisonment and Rs. 20,000/- fine for
charge under Section 377 IPC, six months
simple imprisonment and Rs. 500/- for
charge under Section 323 IPC and one year
simple imprisonment and Rs. 1,500/- fine
for charge under section 4 D.P. Act and
sentence and fine are coupled with default
12 All. Sanjiv Gupta Vs. State of U.P. & Anr.
853
stipulation; all the sentences were directed
to run concurrently. 50% fine is directed to
be paid as compensation to the victim/
informant.

2. The revisionist has assailed
judgement of trial court in criminal appeal no.
129 of 2018 (Sanjeev Gupta vs. State of UP)
whereby criminal appeal is partly allowed to
the extent that conviction for charge under
section 498-A, 323, 377 IPC has been
affirmed but his conviction and sentence for
charge under section 4 of D.P. Act has been
set aside. The sentence awarded by the trial
court for charge under section 377 IPC has
been modified to the extent that five years
rigorous imprisonment for charge under
section 377 IPC is reduced to four years
keeping in view quantum of fine intact. The
revisionist has impugned both the orders
passed by the courts below in present revision
which has been preferred under section
397/401 Cr.P.C.

3. Heard learned counsel for the
revisionist, learned AGA for the State and
learned counsel for respondent no. 2.

4. The factual matrix of the case in brief
are that prosecutrix/ informant, who is
respondent no. 2 in present revision lodged
an F.I.R. on 9.8.2013 at 9:05 hours on the
basis of written report vide Crime no. 331 of
2013 at PS Link Road, Ghaziabad under
section 498-A, 323, 504, 377 IPC and section
3⁄4 D.P. Act against the revisionist/ accused
with averment that her marriage with accused
Sanjeev Gupta was solemnized on 1.7.2012
according to Hindu rites and rituals in which
her father had spent around five and half
lakhs. She stayed with her husband at
Country Inn Hotel for two days after the
marriage. Her husband subjected her to
cruelty just after the marriage in said hotel
and demanded a Fortuner car and Rs. 40
lakhs cash and asked her to bring the dowry
from her parents. On 3.7.2012 her husband
brought her to her parental place where she
told her ordeal to her parents, brother and
sister-in-law. Her family members tried to
convince her that things will get right in
future and also expressed their inability to
fulfil demand of dowry made by her husband.
On 23.7.2012 her husband again visited her
parental place and asked her to go with him
but he made demand of dowry to which her
parents expressed their inability to fulfil. Her
husband abused her and took her at his
parental
place
at
A-229,
Suryanagar,
Ghaziabad where he behaved with her in
cruel and inhuman manner. He would engage
with her in marpeet and abusing. He
subjected
her
to unnatural
intercourse
(sodomy) on many times due to which she
suffered damages to her private parts. She
suffered her ordeal keeping in view her future
but behaviour of her husband did not change.
On 14.8.2012 her parents brought her to her
parental place where she told her plight to her
maternal uncle Sunil Suri, Sanjay Suri and
others, they also tied to make her husband
understand but he did not pay any heed to
their request and they came back being
disappointed. On 9.8.2013 at around 2:30 pm
when she was in her parental place and her
parents had gone to market, her husband rang
the bell of the house and when she opened the
door, he barged into the house, dragged her
forcefully inside the room, abused her and
forcefully established unnatural physical
relation with her against her consent. Her
parents appeared at the place of incident in
the meanwhile and accused was caught with
help of passer-by in the street and brought to
police station. Police investigated the case
and submitted the charge-sheet against the
accused for aforesaid offences.

5. Learned trial court framed charge
under section 498-A, 323, 504, 377 IPC
854 INDIAN LAW REPORTS ALLAHABAD SERIES
and 3⁄4 DP Act against the accused who
denied the charge and claimed for defence.
During trial, prosecution examined PW-1
prosecutrix/ informant, who proved her
written report as Ex. K-1, PW-2 Ashok
Kumar and PW-3 Smt. Shashi Sabbarwal
were examined as parents of the victim,
PW-4 Smt. Neha Sabbarwal, sister-in-law
(Bhabhi) of the victim, PW-5 constable
Omakar Singh proved Chik FIR as Ex.k-2
and extract of GD paper 7A as Ex.k-3, PW6 Dr. Rajbala, consultant of district joint
hospital, Sanjaynagar Ghaziabad, proved
medical
report
of
the
victim
dated
15.12.2015 as Ex. K-3 and supplementary
medical report as Ex. k-4, PW-7 S.I. Bhoop
Singh and S.I. Balbir are investigating
officer of the case, PW-8 proved cite plan
of the place of the incident as Ex.k-5 and
charge-sheet as Ex. k-6. CW-1 Dr. A.K.
Dua
proved
pathological
examination
report dated 4.6.2018 as Ex. k-5.

6. Statement of the accused was
recorded under Section 313 Cr.P.C.,
wherein, he denied the charges levelled
against him and stated that witnesses have
stated falsely against him as they are close
relatives
of
the
prosecutrix.
The
investigating officer has carried out shoddy
investigation and deposed falsely acting
under
influence
of
prosecution
side.
Accused examined DW-1 Ramhari Singh
in his defence, who proved CDR of mobile
no. 9868124452 dated 9.8.2013 as Ex. kh1, DW-2 Dr. Sunil Kumar Tyagi, Senior
Consultant proved injury report dated
10.8.2013 at 8:20 hours of accused Sanjeev
Gupta and medical report dated 12.8.2013
as Ex. Kh-2. Accused himself appeared as
defence witness as DW-3, who proved
various documents relating to marriage/
income affidavit, school fee of the children
of prosecutrix, which is paid by the accused
and R.T.I. information received regarding
complaint filed by the prosecutrix against
the accused, another papers as Ex.Kh-3 to
Ex.kh-24. Accused himself appeared as
DW-3 before the trial court and got himself
examined as defence witness.

7.

Learned
trial
court
after
considering the submissions of learned
counsel for the parties and perusing the
documentary and oral evidence adduced
during trial and citing certain judgement of
Hon'ble Apex court in Suraj Singh alias
Sonu Suraj Singh (2017) 4 Supreme 375,
Vijay alias Chinee vs. State of MP (2010) 8
SCC 191, Namdev vs. State of Maharashtra
(2007) 14 SCC 150, Harbans Kaur vs. State
of Haryana, (2005) 9 SCC 195, Bheerulal
and another vs. State of Rajasthan (2009)
66 ACC 997 (SC), Dhanj Singh vs. State of
Punjab (2004) 3 SCC 654, Khem Ram vs.
State of Himanchal Pradesh, (2018) 1 SCC
202, Rahul Mishra vs. State of Uttrakhand,
AIR (2015) SC 3043, Gannath Patnayak vs.
State of Orissa (2002) 2 SCC 619, and
Fiona Shrikhande vs. State of Maharastra
(2013) 14 SCC 44, convicted the accused
for charge under section 498A, 323, 377
IPC and section 4 of D.P. Act and
sentenced
him
as
aforesaid.
Feeling
aggrieved by the judgement of conviction
and sentence recorded by the court below,
accused filed criminal appeal before the
court of sessions, which was decided by the
impugned judgement and order dated
30.5.2019 passed by learned Sessions
Judge, Ghaziabad in which conviction and
sentence recorded by the court below for
charge under section 498-A, 323, 377 IPC
was affirmed and conviction and sentence
for charge under section 4 of D.P. Act was
set aside. However, sentence awarded for
charge under section 377 IPC has been
reduced
to
four
years
rigorous
imprisonment from five years as awarded
by the trial court.
12 All. Sanjiv Gupta Vs. State of U.P. & Anr.
855

8. Learned counsel for the revisionist
submitted that learned appellate court has
given contradictory findings in appellate
judgement as on one hand learned appellate
court has set aside the conviction and
sentence passed by trial court for charge
under section 4 of D.P. Act but on the other
hand, affirmed the conviction under section
498-A, 323, 377 IPC as recorded by the
trial court. Learned courts below has failed
to appreciate the fact that the prosecutrix
has been changing her stand on different
stages.
The
present
F.I.R.
is
infact
counterblast of a criminal case lodged at
the instance of revisionist against the
prosecutrix, her maternal uncle and family
members of prosecutrix under sections 406,
323, 420, 504, 506, 120-B IPC, which is
registered as Criminal Case no. 1469 of
2013 in which summons were issued by the
ACJM-8, Ghaziabad against the maternal
uncle and family members of prosecutrix.
The revisionist had gone to locate the
accused persons in that complaint but he
was caught, roughed up and beaten by them
on 9.8.2013 and lodged at police station at
the behest of prosecutrix and her family
members and on same day false F.I.R. in
present case was lodged against him with
concocted
and
false
version.
The
prosecutrix had never made physical
relation with revisionist after the marriage.
She remained with him for a short period
after the marriage and parted her ways with
the revisionist and resided separately with
her parents since 14.8.2012 thus, she left the
company of revisionist just within one and
half month of her marriage. Learned appellate
court has disbelieved the incident dated
9.8.2013 as narrated in the F.I.R. as well as in
version of prosecution witness for present
case. However, it wrongly placed reliance on
version of prosecutrix that she was slapped
by her husband in the first night of her
marriage and she was subjected to unnatural
sex like sodomy and oral sex during the
period she resided with her husband at rented
accommodation,
A-229
Suryangar
Ghaziabad from 23.7.2012 to 17.8.2012. The
revisionist is a qualified chartered accountant
who was working as Deputy General
Manager, (Finance) in Bharat Sanchar
Nigam. He got himself transferred from
Chandigarh to Ghaziabad after the marriage.
She remained with him for 12 days only as
per her own admission in other proceeding
and also stated that physical relationship
could not be established between them as she
was suffering from kidney stone problem.

9. Learned counsel further submitted
that this is admitted position that this is
second marriage of the prosecutrix alongwith
revisionist, she was earlier married with
Omkar Chawla. On 13/14.8.2011 she was
driving a car in which her brother, husband
and her brother-in-law were sitting, an
accident occurred on that date i.e. on
14.8.2011 in which her husband and brotherin-law both died. Thereafter, marriage of
prosecutrix was solemnized with revisionist
on 1.7.2012 and the sister Preeti was
solemnized next day. Both marriages were
solemnized at Arya Samaj. An F.I.R. was
lodged in that accidental matter vide crime
no. 253 of 2011, under sections 379, 304-A
IPC at P.S. Sahadara, New Delhi at the
instance of brother of the prosecutrix. There
was no question of any demand of dowry as
it was second marriage and marriage of
necessity, even the appellate court acquitted
the revisionist for charge under section 4 of
D.P. Act. The Delhi court dismissed the
complaint of the prosecutrix under section 12
of Protection of Women from Domestic
Violence Act being misuse of process of law.

10. There is no injury report in
support of the allegation of any marpeet
with the prosecutrix on record. The
856 INDIAN LAW REPORTS ALLAHABAD SERIES
revisionist himself victim of torture and
high-handedness at the hand of prosecutrix
and her family members. He has filed
injury report dated 9.8.2013 which was
prepared by Jail doctor in which he has
suffered
substantial
injuries,
in
contradictory distinction to this, any
medical report of the prosecutrix does not
support any sexual violence for unnatural
sex with her. The appellate court recorded
fresh finding of fact that the victim was
subjected to unnatural sex during period
23.7.2012 to 14.8.2012 after disbelieving
incident of 9.8.2013 whereas there is no
specific finding of trial court that she was
subjected to unnatural sex by the revisionist
between 23.7.2012 to 14.8.2012, thus
approach of appellate court is contrary to
law of appeal.

11. Learned counsel finally submitted
that both the courts below misappreciated
the evidence on record and judgment of
conviction and sentence awarded against
the appellant by the court below is not
sustainable and deserved to be set aside and
submitted that learned appellate court on
one hand disbelieved the occurrence of
committing physical assault and subjecting
the prosecutrix to unnatural sex by the
revisionist but on the other hand has
convicted and sentenced him for charge
under section 377 IPC on the basis of
statement of prosecutrix that she was
subjected to non consensual unnatural sex
during short period when she stayed
between 23.7.2012 to 14.8.2012. This is the
case of the prosecutrix that she was staying
separately
from
her
husband
since
14.8.2012. Revisionist himself took house
no. A-229 Suryanangar on rent on
23.7.2012 which is nearby to the house of
mother of prosecutrix on her insistence, in
which she was residing. The evidence of
prosecutrix with regard to slapping of her
by the revisionist in the first night of
marriage subjected her for committing
sodomy and oral sex with her, does not
inspire
confidence
keeping
in
view
sequence of events and for want of medical
and scientific evidence in support of this
case. The revisionist himself appeared as
DW-3 as defence witness and had proved
all documents produced and recorded by
him during trial which suggests his
innocence and exculpate him from criminal
liability wrongly imposed on him in the
impugned judgement by the courts below.
The courts below have wrongly convicted
him taking hyper technical approach and
against established principles of criminal
jurisprudence. Infact, prosecutrix was cross
examined on her version that she was
slapped by the accused in the very first
night of marriage. There is no such version
in F.I.R. that the revisionist slapped her on
very first night of marriage.

12. Per contra, learned counsel for
respondent no. 2 submitted that there is no
illegality, irregularity or misappreciation of
evidence in the impugned judgement
passed by learned courts below whereby
the revisionist has been convicted and
sentenced for charge under sections 377,
323, 498-A IPC. The revisionist has failed
to provide any justifiable reasons which
would warrant interference of this Court in
present
criminal
revision.
There
is
concurrent finding of guilt recorded by
both the courts below which need not be
interfered.

13. From perusal of ordersheet of
present revision, it appears that revisionist
was sent to jail custody after judgement of
appellate court dated 30.5.2019 whereby
his conviction and sentence for charge
under sections 498-A, 377, 323 IPC was
affirmed with some modification. The
12 All. Sanjiv Gupta Vs. State of U.P. & Anr.
857
revisionist was released on bail by order of
this Court dated 9.7.2019 in present
revision. However, the revisionist used to
appear in person before this Court and
moved several applications on one or other
grounds. Several adjournments were taken
by the revisionist as he was not inclined to
previously to argue the case before this
Court, even he moved an application with
prayer to transfer the case to Hon'ble Apex
Court or any other court which was
unfounded and ultimately rejected.

14. Sri V.P. Srivastava, advocate, was
appointed as Amicus Curiae but the
revisionist declined to take his assistance.
Thereafter, Sri Arvind Kumar Singh was
appointed as Amicus curiae vide order
dated 19.11.2022. This Court observed in
previous orders that conduct of the
petitioner in the Court during course of
arguments was wholly uncalled for and
ultimately due to his non cooperation in the
proceedings of the case, this Court taking
strong exceptions to his conduct, cancelled
the bail granted to him by this Court vide
order dated 19.11.2022 and the revisionist
was directed to be taken in custody and
sent to Central Jail, Naini, Prayagraj and
thereafter shifted to Central Jail, Ghaziabad
in due process and it appears that the
revisionist is presently held in jail custody
in Ghaziabad. The F.I.R. in present case
was lodged at the instance of respondent
no. 2 on 9.8.2013 at 19:05 hours vide
Crime No. 331 of 2013 under Sections 498A, 323, 504, 377 IPC and 3⁄4 D.P. Act and
the investigating officer submitted chargesheet after investigation with prayer to
prosecute him in said charges. The trial
court acquitted the accused of charge under
Section 504 IPC and convicted him for
charge under Sections 498-A, 377 IPC and
Section 4 of D.P. Act. The first appellate
court while deciding the criminal appeal
preferred by the accused convict by the
impugned judgement, acquitted him of
charge under section 4 of D.P. Act but
affirmed his conviction for charge under
Section 498-A, 323, 377 IPC and further
reduced his sentence
awarded under
Section 377 IPC from five years to four
years. However, fine awarded in the
judgement of trial court for said offence
was kept intact.

15.

The
prosecution
examined
prosecutrix/ victim as PW-1, Ashok Kumar
as PW-2 and PW-3 Smt. Shashi Sabbarwal,
PW-4 Smt. Neha Sabbarwal and other
witnesses of fact in support of prosecution
version. However, two witnesses of fact,
who
have
been
examined
during
investigation, the maternal uncle and
brother of prosecutrix were discharged
from evidence on her application before the
trial court. However, it was not stated in
application for discharge that they have
become hostile or were not forthcoming to
support prosecution case. The prosecutrix
filed divorce case after lodging of present
F.I.R. before the family court which was
decreed on 29.3.2018 on the ground of
cruelty and allegations of committing
unnatural non consensual sex against her
by her husband were found to be
established and said divorce decree was
affirmed by High Court in appeal vide
order dated 20.5.2019.

16. Learned counsel for respondent
no. 2 submitted that this was second
marriage
of
revisionist
with
victim,
marriage with first wife Priyamvada was
also dissolved by decree of divorce in
which similar ground was taken by his first
wife whereas revisionist who appeared as
DW-3 before the trial court has stated that
the complainant (PW-1) admitted in her
statement dated 18.11.2012 at Mahila
858 INDIAN LAW REPORTS ALLAHABAD SERIES
Thana that physical relations could not
establish between him and respondent no.
2. She stayed with him for a short time
during which she was suffering from
Gallbladder stone which was operated and
treated in the Apolo hospital and Excort
hospital at Delhi for which revisionist had
borne all expenses and he has filed copies
of bank statement as Ex. kh-18 during his
evidence as DW-3. The courts below have
also accepted the contention of revisionist
that he had taken insurance policy for ten
years in the name of son and daughter of
prosecutrix, who had born out of the
wedlock with her previous husband and
paid
its
premium.
He
planned
for
investment of 12 lakhs for her children. He
also paid Rs. 81,300/- as school fee of her
children
and
got
admitted
him
in
prestigious British school, Chandigarh and
on these factual situation learned appellate
court did not believe allegation and
testimony of prosecutrix with regard to
demand of dowry levelled against the
revisionist. PW-1 the prosecutrix has stated
in her examination in chief that accused
husband slapped her once in first night of
marriage and behaved with her in cruel
manner. However, she stated in cross
examination that she made a complaint at
Mahila Thana, Ghaziabad in which her
statement was recorded on 18.11.2012. She
has not openly levelled allegations of
commission of unnatural sex and marpeet
against her husband in expectation that things
will get right as compromise was on card
between spouse. Learned appellate court has
observed on this count in the impugned
Judgement that in absence cross examination
on point of allegation of slapping levelled
against the accused in the first night of
marriage, the statement of PW-1 on this score
is
unrefuted
therefore,
commission
of
marpeet with the victim is proved. Learned
appellate court has also observed that
commission of unnatural sex like sodomy
and oral sex with wife is marital wrong and
cruelty committed by husband against wife
therefore, slapping in the first night of
marriage and commission of sodomy and oral
sex by accused against the prosecutrix
amounts to matrimonial cruelty and on that
basis, charges under sections 323, 498-A, 377
IPC are proved against the accused.

17. Learned appellate court has also
observed that although no injury was found in
anal region of the prosecutrix at the time of
her examination on 9.8.2013 at 8:30 pm by
PW-6 Dr. Rajbala and non presence of
spermatozoa in vaginal smear of the
prosecutrix in pathological examination
report. This fact is not proved that she was
subjected to unnatural sex by accused on
9.8.2013 but on perusal of evidence on
record, this fact is established that an attempt
was made to commit unnatural sex with her
on 9.8.2013. Five simple injuries were
recorded by doctor on 10.8.2013 on the
person of accused Sanjeev when he was
arrested on 9.8.2013 and sent to jail custody,
however, no mark of injury was found on
examination of his male private part nor
between his thigh. Even in absence of proof
of sexual violence against the prosecutrix on
9.8.2013, this fact is proved that she was
subjected to unnatural sex and oral sex
between 23.7.2012 to 14.8.2012 by the
accused upon the prosecutrix against her will
at two places where they lived together after
the marriage as testimony of PW-1 on this
point is not subjected to cross examination by
accused during her evidence before the court,
even no suggestion has been given to her that
accused had not inserted her male organ in
her mouth.

18. The appellate court has also
observed that after lapse of one year, the
presence of any anal injury or absence of
12 All. Sanjiv Gupta Vs. State of U.P. & Anr.
859
spermatozoa
in
vaginal
smear
of
prosecutrix is a natural phenomena and on
this reason, her testimony for charge under
section 377 IPC cannot be disbelieved.
Therefore, this fact is proved that accused
had committed unnatural offence such as
sodomy and oral sex against the prosecutrix
without her consent and therefore, he is
liable to be convicted and sentenced for
that offence.

19. In the opinion of the trial court,
fact is also proved by prosecution evidence
that accused slapped the victim, his wife in
the first night of marriage and caused
simple injury to her, which is punishable
under Section 323 IPC and accordingly
sentenced him for that offence for six
months simple imprisonment with fine of
Rs. 500/-. Learned appellate court has also
affirmed the conviction of revisionist for
charge under section 498-A IPC with
regard to causing matrimonial cruelty
against the defacto complainant on the
ground that he acted in cruel manner with
his wife (PW-1) just after the marriage and
committed unnatural sex like sodomy and
oral sex (fellatio) with her without her
consent and that amounts to marital wrong
and matrimonial cruelty.

20. From perusal of record it also
appears that complainant filed a divorce
suit against the revisionist husband as
divorce case under section 13(1) of Hindu
Marriage Act on the ground of cruelty and
decree of divorce was passed by learned
Additional Sessions Judge/FTC, court no.
2, Ghaziabad in said divorce case on
29.3.2018 and the revisionist preferred first
appeal against the said judgement and
decree before this Court and it was
dismissed by the Division Bench of this
Court in First Appeal No. 296 of 2018 on
24.5.2019 and observed that;

"we are in agreement with the
view taken by the Karnataka High Court as
referred in Grace Jayamani vs E.P. Peter,
AIR 1982 Kant. 46 and Bini T. John vs Saji
Kuruvila, AIR 1997 Ker. 217. Unnatural
sex, sodomy, oral sex and sex against the
order of the nature, against the wishes of a
women or wife or anybody is not only a
criminal offence but also a marital wrong
and amounts to cruelty which is a good
ground for dissolution of marriage. Any
such thing which brings the wife to
indignity and causes physical and mental
agony and pain is cruelty. Forcible sex,
unnatural or natural, is an illegal intrusion
in the privacy of the wife and amounts to
cruelty against her. It has been specifically
stated by the respondent wife in her petition
as well as in her affidavit filed in evidence
that the appellant-husband was earlier
married with one Priyamvada who for
similar reasons divorced her. On this point,
the appellant-husband has been crossexamined, but he has given evasive reply
and has not clarified the facts. He could
have filed judgment of that divorce case,
which must have been in his knowledge,
but the same was not filed by him. This fact
also supports the respondent-wife, so far as
allegations of unnatural sex is concerned."

21. In present case, the respondent no.
2 has taken consistent stand in her evidence
that
the
revisionist
committed
non
consensual unnatural sex with her during
her stay in private house between the
period 23.7.2012 to 14.8.2012, therefore,
learned appellate court took stand that
inspite the fact that incident of committing
unnatural sex and marpeet with victim on
9.8.2013 at her parental place by the
accused is not proved, the evidence of
prosecutrix with regard to commission of
unnatural sex with her by accused prior to
that date and after the marriage cannot be
860 INDIAN LAW REPORTS ALLAHABAD SERIES
disbelieved. Decree of divorce has been
granted to the respondent no. 2 on ground
of matrimonial cruelty by husband and
same has been affirmed by the appellate
court also on the ground that revisionist
was involved in commission of Marpeet
(beating) and non consensual and unnatural
sex with her which amounts to marital
wrong and matrimonial cruelty.

22. Learned appellate court has
addressed every factual and legal issues
raised by accused side in appellate
judgement and considered sympathetic and
generous attitude of the revisionist towards
situation of the complainant disbelieved the
charge levelled against him regarding
demand of dowry and acquitted him of that
charge. Section 397/401 Cr.P.C. confers
power of revision upon the High Court or
Sessions Judge, which may call for and
examine the records of any proceedings
before any inferior Criminal Court situate
within its or his local jurisdiction for the
purpose of satisfying itself or himself as to
the correctness, legality or propriety of any
finding, sentence or order, recorded or
passed, and as to the regularity of any
proceedings of such inferior Court, object
of
the
revisional
jurisdiction
unlike
appellate jurisdiction is to confer a sort of
supervisory power. The purpose is to
rectify miscarriage of justice whether the
substantial justice has been done is a main
consideration. Revisional power is to be
exercised in appropriate cases. Discretion
in exercise of revisional jurisdiction should
be exercised within four corners of Section
397 Cr.P.C., wherever there has been
miscarriage of justice in any manner
whatsoever. This revisional jurisdiction
should not be invoked as a right. Revision
is not a right but is only procedural facility
given to a party whereas appeal is
continuation of the proceedings. While
considering the legality, propriety or
correctness of a findings or a conclusion,
normally the revising court does not dwell
at length upon the facts and evidence of the
case. A court in revision considers the
material only to satisfy itself about the
legality and propriety of the findings,
sentence and order and refrains from
substituting its own conclusion on an
elaborate consideration of the evidence.

23. Hon'ble Supreme Court in K.
Chinnaswami Reddy vs. State of Andhar
Pradesh, AIR 1962 SC 1788 observed that
High Court has entered into the domain of
reappraisal of evidence, which it was not
authorized to do in exercise of revisional
power. This is settled law that High Court
in exercise of revisional jurisdiction against
concurrent
finding
of
conclusion
on
acquittal of an accused recorded by two
courts below need not disturb the findings
of fact recorded and affirmed by the courts
below unless perversity is found therein.

24. Hon'ble Supreme Court in Vinay
Tyagi vs. Irshad (2013) 5 SCC 762
relying upon its earlier judgement in the
case of Amit Kapoor vs. Ramesh Chander
(2012) 9 SCC 329 held that normally, a
revisional
jurisdiction
should not
be
exercised on a question of law. However,
when factual appreciation is involved, then
it must find place in the class of cases
resulting in a perverse finding. Basically,
the power is required to be exercised so
that justice is done and there is no abuse of
power
by
the
court.
Merely
an
apprehension or suspicion of the same
would not be a sufficient ground for
interference in such cases.

25. In present case, prior to lodging of
present F.I.R. by the complainant against
the revisionist on 9.8.2013, a complaint
12 All. Sanjiv Gupta Vs. State of U.P. & Anr.
861
case was filed by the accused against the
present complainant and her relatives under
Sections 406, 323, 420, 504, 506, 120-B
IPC in which summoning order was passed
against the complainant and her relatives
prior to lodging of present F.I.R. and the
revisionist was arrested in present F.I.R. on
the day of its registration dated 9.8.2013
and on 10.8.2013 his medical examination
was conducted in which visible injuries
were found on his person. The complainant
resided with him for a brief total period of
23 days after marriage and even during that
period too she had undergoing treatment
and operation for her kidney stone ailment
in reputed hospitals and expenses thereof
were borne by the revisionist husband.
There is no medical evidence of the
prosecutrix in support of charge under
section 323, 377 IPC.

26. By these facts revisionist has tried
to establish that he himself is a victim of
high-handedness of complainant side and
present F.I.R. is counterblast of said
complaint case lodged by the accused
against
the
complainant
side.
Much
emphasis has also been taken by the
accused on fact that in medical examination
of victim, no internal or external injury was
found on the person which falsifies the
allegation of commission of unnatural sex
with her by the revisionist.

27. Hon'ble Supreme Court in Sucha
Singh vs. State of Punjab, (2003) 7 SCC
643 held that even if major portion of
evidence is found to be deficient, in case,
residue is sufficient to prove guilt of an
accused, notwithstanding acquittal of a
number of other co-accused persons, his
conviction can be maintained. It is the duty
of Court to separate grain from chaff.
Falsity of particular material witness on
material particular would not ruin it from
the beginning to end. The maxim "falsus in
uno falsus in omnibus" has no application
in India and the witnesses cannot be
branded as liar. In the case this maxim is
applied in all cases, it is to be feared that
investigation of criminal justice would
come to a dead stop. Witnesses just cannot
help in giving embroidery to a story,
however, true in the main. Therefore, it has
to be appraised in each case as to what
extent
the
evidence
is
worthy
of
acceptance, and merely because in some
respects the Court considers the same to be
insufficient for placing reliance on the
testimony of a witness, it does not
necessarily follow as a matter of law that it
must be disregarded in all respects as well.

28. Therefore, I find no factual or
legal error in finding of guilt recorded by
the learned appellate court as regards
charge under section 323, 498-A IPC is
concerned in which impugned judgement
of the trial court has been affirmed with
some modification. However, this fact
cannot be lost sight that Madhya Pradesh
High Court has recently delivered an
important judgement on maintainability of
charge under Section 377 IPC against wife
in the light of amendment made under
section 375 IPC in the year 2013, Criminal
Law
(Amendment)
Act,
2013
w.e.f.
3.2.2013 whereby definition of rape has
been largely extended in the light of
enactment of POCSO Act, 2012. In Umang
Singhar vs. State of MP and another,
M.Cr.C. No. 59600 of 2022 on 21.9.2023,
wherein, respondent no. 2, petitioner, was
charged for offence punishable under
sections 294, 323, 376(2)(n), 377, 498-A,
506 IPC at the instance of his wife,
respondent no. 2. Petition filed by the
accused before the High Court under
section 482 Cr.P.C. for quashing the F.I.R.
on multiple grounds. The petition was
862 INDIAN LAW REPORTS ALLAHABAD SERIES
challenged by the respondent on the ground
that the act of the petitioner was not less
than transgression of law and he deserves
no interference by the High Court in the
matter. The petitioner was a member of
M.P. State Legislative Assembly and
various allegation regarding matrimonial
cruelty and commission of unnatural sex
etc. were levelled by his wife against him
in the F.I.R. and after considering the
submissions of both side in detailed, the
High Court observed as under:-

12.