# Shailendra Saini v. State of U.P. & Anr

- **Citation:** (2023) 7 ILRA 45
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-04
- **Case number:** Criminal Appeal No. 2205 of 2022
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shailendra-saini-v-state-of-u-p-anr-50357
- **Pages:** 4

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections 354, 323, 504, 506, 376, 313,
328 & 392 - Scheduled Castes and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Section 3(2)(V) -
Appeal
against
rejection
of
bail
-
Allegation
against
appellant
that
by
playing fraud and on false promise of
marriage, committed rape - Appellant
contended that prosecutrix was major and
with her consent, physical relation was
made by appellant. (Para 2, 3)

Held, appellant committed rape several
times with prosecutrix either giving some
in toxic material or on some false promise
of marriage, even as per version of F.I.R,
prosecutrix was pregnant and forcefully
aborted
on
instance
of
appellant
-
Prosecutrix marriage was solemnized with
some other person - Appellant did not
leave her free and always threatened her
to give naked photographs and video to
her husband and to her in-laws and after
marriage of prosecutrix, he made physical
relation forcefully several times - She
requested
appellant
to
return
all
photographs, video graphs and pen drive
but
refused
by
accused
-
Appellant
committed heinous crime and he is not
entitled to get any relief. (Para 9, 10)

Appeal dismissed. (E-13)

List of Cases cited:

## Text

7 All. Shailendra Saini Vs. State of U.P. & Anr.
45
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 174-A 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 45
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.07.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 2205 of 2022

Shailendra Saini ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Vashu Deo Mishra

Counsel for the Respondents:
G.A., Bhupendra Nath Tripathi

Criminal Law - Indian Penal Code,1860 -
Sections 354, 323, 504, 506, 376, 313,
328 & 392 - Scheduled Castes and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Section 3(2)(V) -
Appeal
against
rejection
of
bail
-
Allegation
against
appellant
that
by
playing fraud and on false promise of
marriage, committed rape - Appellant
contended that prosecutrix was major and
with her consent, physical relation was
made by appellant. (Para 2, 3)

Held, appellant committed rape several
times with prosecutrix either giving some
in toxic material or on some false promise
of marriage, even as per version of F.I.R,
prosecutrix was pregnant and forcefully
aborted
on
instance
of
appellant
-
Prosecutrix marriage was solemnized with
some other person - Appellant did not
leave her free and always threatened her
to give naked photographs and video to
her husband and to her in-laws and after
marriage of prosecutrix, he made physical
relation forcefully several times - She
requested
appellant
to
return
all
photographs, video graphs and pen drive
but
refused
by
accused
-
Appellant
committed heinous crime and he is not
entitled to get any relief. (Para 9, 10)

Appeal dismissed. (E-13)

List of Cases cited:

1. Dr. Dhruvaram Murlidhar Sonar Vs The St. of
Mah., (2019) 18 SCC 191

2. Anurag Soni Vs St. of Chhattisgarh, (2019) 13
SCC 1: AIR 2019 SC 1857

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

1. Heard Sri Vashu Deo Mishra,
learned counsel for the appellant, Sri
Bhupendra Nath Tripathi, learned counsel
for the complainant, Ms. Shikha Sinha,
learned Additional Government Advocate
46 INDIAN LAW REPORTS ALLAHABAD SERIES
for the State and perused the material
available on record.

2. The present Criminal Appeal under
Section 14-A (2) of Scheduled Castes &
Scheduled Tribes (Prevention of Atrocities)
Act, 1989 has been preferred against the
impugned order dated 05.09.2022 passed
by the learned Special Judge, SC/ST Act,
Lucknow in Bail Application No. 6984 of
2022 (CNR No. UPLKO10119882022),
Case Crime No. 0537 of 2022, under
Sections 354, 323, 504, 506, 376, 313, 328,
392 IPC and Sections 3(2)(v) of SC/ST Act,
Police Station Chinhat, District Lucknow,
whereby the bail application of the
appellant has been rejected.

3. Learned counsel for the appellant
submits that the appellant is innocent and
has falsely been implicated in the present
case. No such incident took place, as
alleged by the prosecutrix in the First
Information Report. It is a case of false
promise of marriage and the parties are
consenting. Thus, the allegation of rape is
false, even though, no ingredient of Section
3(2)(v) of SC/ST Act is attracted against
the applicant. The prosecutrix is major and
with her consent, the physical relation was
made by the appellant. Thus, the entire
allegation
is
false
and
fabricated.
Therefore, the present appeal be allowed
and the appellant be released on bail.

4. Per contra, Sri Bhupendra Nath
Tripathi, learned counsel for opposite party
no. 2 as well as Ms. Shikha Sinha, learned
AGA for the State-opposite party no. 1
opposed the prayer for bail and submitted
that prima facie, from the plain reading of
the
First
Information
Report,
the
cognizable offence is made out. In this
case,
chargesheet
has
already
been
submitted against the
appellant. The
prosecutrix has made balled allegation of
committing rape several times by the
appellant after giving some intoxic material
and also demanding money from the
prosecutrix. Even though, she was pregnant
and on the pressure created by the
appellant, abortion was made. As per the
version of the FIR, the marriage of the
prosecutrix was also solemnized with some
other person. There also the appellant put
pressure and threatened her to send the
naked photographs and video to her
husband which he has obtained at the time
of
first
physical
relation
with
the
prosecutrix forcefully. The prosecutrix
made a request to return all the alleged
videographs and photographs, even though
the pen drive, but the appellant refused and
threatened her for dire consequences. Thus,
the present appeal be rejected and the
appellant is not entitled to get any relief by
this Court.

5. In support of his argument, Sri
Bhupendra Nath Tripathi, learned counsel
for opposite party no. 2 has placed reliance
on the judgment rendered in the case of Dr.
Dhruvaram Murlidhar Sonar: (2019) 18
SCC 191, wherein Hon'ble the Apex Court
has observed that there is a clear distinction
between rape and consensual sex and, in
such cases, it must be very carefully
examined whether the complainant had
actually wanted to marry the victim or had
mala fide motives and had made a false
promise to this effect only to satisfy his
lust, as the later falls within the ambit of
cheating or deception. The Supreme Court
after referring to various decisions has
observed as follows:

"Thus, there is a clear distinction
between rape and consensual sex. The
court, in such cases, must very carefully
examine whether the complainant had
7 All. Shailendra Saini Vs. State of U.P. & Anr.
47
actually wanted to marry the victim or had
mala fide motives and had made a false
promise to this effect only to satisfy his
lust, as the later falls within the ambit of
cheating or deception. There is also a
distinction between mere breach of a
promise and not fulfilling a false promise.
If the accused has not made the promise
with the sole intention to seduce the
prosecutrix to indulge in sexual acts, such
an act would not amount to rape. 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 the misconception
created by accused, or where an accused,
on account of circumstances which he
could not have foreseen or which were
beyond his control, was unable to marry
her despite having every intention to do.
Such cases must be treated differently. If
the complainant had any mala fide
intention and if he had clandestine motives,
it is a clear case of rape. The acknowledged
consensual physical relationship between
the parties would not constitute an offence
under section 376 of the IPC."

6. It has been settled view that the
question whether consent given by the
prosecutrix
to
sexual
intercourse
is
voluntary or whether it is given under
"misconception of fact" depends on the
facts of each case. While considering the
question of consent, the Court must
consider the evidence before it and the
surrounding circumstances before reaching
a conclusion. Evidence adduced by the
prosecution has to be weighed keeping in
mind that the burden is on the prosecution
to prove each and every ingredient of the
offence. Prosecution must lead positive
evidence to give rise to inference beyond
reasonable doubt that accused had no
intention to marry prosecutrix at all from
inception and that promise made was false
to his knowledge.

12. Learned counsel for the
complainant further submits that in Anurag
Soni v. State of Chhattisgarh, (2019) 13
SCC 1:AIR 2019 SC 1857, the accused
never intended to marry the prosecutrix; he
gave
false
promises/promise
to
the
prosecutrix to marry her and on such false
promise he had physical relationship with
the prosecutrix; the prosecutrix initially
resisted, however, gave the consent relying
upon the false promise of the accused that
he will marry her and, therefore, her
consent can be said to be a consent on
misconception of fact. The prosecutrix, in
the present case, was an educated girl
studying in B. Pharmacy. Therefore, it is
not
believable
that
despite
having
knowledge that that appellant's marriage is
fixed with another lady, she and her family
members would continue to pressurize the
accused to marry and the prosecutrix will
give the consent for physical relation. Even
considering Section 114A of the Evidence
Act which has been inserted subsequently,
there is a presumption and the court shall
presume that she gave the consent for the
physical relationship with the accused relying
upon the promise by the accused that he will
marry her. From the very inception, the
promise given by the accused to marry the
prosecutrix was a false promise and from the
very beginning there was no intention of the
accused to marry the prosecutrix as his
marriage with Priyanka Soni was already
fixed long back and, despite the same, he
continued to give promise/false promise and
alluded the prosecutrix to give her consent for
the physical relationship. The Supreme Court
after having discussed the law on the point
held as follows:

"The sum and substance of the
aforesaid decisions would be that if it is
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: