# Shrey Gupta v. State of U.P. & Anr

- **Citation:** (2024) 10 ILRA 399
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-01
- **Case number:** Application U/S 482 No. 6789 of 2019
- **Bench:** Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shrey-gupta-v-state-of-u-p-anr-51183
- **Pages:** 27

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164, 209-A & 482 -
The Indian Penal Code, 1860 - Sections
90, 375, 375-(a), 375-(b), 375-(c), 375-
(d), 376 & 386 - Application u/s 482 - for
quashing the charges-sheet as well as entire
criminal proceedings - FIR - offence of rape &
extortion - when husband of the informant was
suffering from a severe disease, applicant
become very closed to the informant - since her
husband would be alive only for few more days,
both of them would marry, having confident and
promise to marry in future, both have entered in
physical relationship which are continued, even
after death of her husband, in home as well as
in hotels outside - when she knows about
engagement of applicant with another lady, she
lodged the FIR - chargesheet - court finds that,
prosecutrix (aged about 49 years) herself was a
married woman having two children and also
having her husband alive, had entered into a
physical relationship out of love, lust and
400 INDIAN LAW REPORTS ALLAHABAD SERIES
infatuation towards the applicant (aged about
26 years), due to incapacity of her husband, due
to his illness and she continuously remained in
such an adulterous physical relationship with the
applicant for a period of 12-13 years knowing
fully well that she has no capacity of marriage
with the applicant - admittedly, the prosecutrix
was in a dominant position over the applicant
and there is no allegations of any use of force or
cheating by the applicant to allure the
prosecutrix at the time of inception of the
relationship between them - held, if the parties
were
having
long-standing
continuously
consensual physical relationship without there
being any element of cheating from the
inception, such relationship would not amount
to rape - hence, in the instant case no offence
of rape is made out - application is allowed -
impugned charge-sheet as well as entire
proceedings are quashed. (Para - 16, 42, 43,
45, 46)

Application Allowed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,817 of 80,708. This is a partial read: ask again with offset=39817 for what follows._

10 All. Shrey Gupta Vs. State of U.P. & Anr.
399
application which includes real
request/prayer sought therein.
(vi) On alteration of charge,
in exercise of power under Section
216 CrPC, if an accused is
discharged from the offence for
which charge was initially framed
or the trial comes to an end for the
said accused for the charge initially
framed against him or if on
appreciation
of
evidence
the
accused cannot be punished in the
light of Section 222 CrPC for the
offence he was initially charged,
then in that eventuality, to the view
of this Court, it would come within
the purview of expression 'deletion
of charge'.

35. In the instant case, the
charge against accused-applicant was
framed under Section 306 CrPC and
the trial Court, after taking note of
the evidence recorded before it, on an
application under Section 216 CrPC,
altered/changed
the
charge
by
deleting charge under Section 306
and framing charge under Section
302 IPC and in this view of the
matter, the accused has not been
discharged nor the trial has come to
an end and in view of the judgment
passed by the Hon'ble Apex Court in
the case of Dalbir Singh v. State of
U.P., (2004) 5 SCC 334, the accusedapplicant
could
still
be
punished/convicted for the offence
under Section 306 IPC. As such, the
submission of the learned counsel for
the applicant that the charge cannot
be deleted, has no force.

36.

For
the
reasons
aforesaid,
the
application
is
dismissed. No order as to costs.
37. The Court records the
valuable assistance given by Ms.
Urmish
Shankar,
Research
Associate, attached with me in
drafting this judgment and finding
out case laws applicable in the
present case.
----------
(2024) 10 ILRA 399
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.10.2024

BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.

Application U/S 482 No. 6789 of 2019

Shrey Gupta ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Irfan Hasan, Vijit Saxena

Counsel for the Respondents:
G.A., Jagdev Singh

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164, 209-A & 482 -
The Indian Penal Code, 1860 - Sections
90, 375, 375-(a), 375-(b), 375-(c), 375-
(d), 376 & 386 - Application u/s 482 - for
quashing the charges-sheet as well as entire
criminal proceedings - FIR - offence of rape &
extortion - when husband of the informant was
suffering from a severe disease, applicant
become very closed to the informant - since her
husband would be alive only for few more days,
both of them would marry, having confident and
promise to marry in future, both have entered in
physical relationship which are continued, even
after death of her husband, in home as well as
in hotels outside - when she knows about
engagement of applicant with another lady, she
lodged the FIR - chargesheet - court finds that,
prosecutrix (aged about 49 years) herself was a
married woman having two children and also
having her husband alive, had entered into a
physical relationship out of love, lust and
400 INDIAN LAW REPORTS ALLAHABAD SERIES
infatuation towards the applicant (aged about
26 years), due to incapacity of her husband, due
to his illness and she continuously remained in
such an adulterous physical relationship with the
applicant for a period of 12-13 years knowing
fully well that she has no capacity of marriage
with the applicant - admittedly, the prosecutrix
was in a dominant position over the applicant
and there is no allegations of any use of force or
cheating by the applicant to allure the
prosecutrix at the time of inception of the
relationship between them - held, if the parties
were
having
long-standing
continuously
consensual physical relationship without there
being any element of cheating from the
inception, such relationship would not amount
to rape - hence, in the instant case no offence
of rape is made out - application is allowed -
impugned charge-sheet as well as entire
proceedings are quashed. (Para - 16, 42, 43,
45, 46)

Application Allowed. (E-11)

List of Cases cited:

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

2. Dhruvaram Murlidhar Sonar Vs St. of Mah. -
(2019) 18 SCC 191,

3. Maheshwar Tigga Vs St. of Jharkhand -
(2020) 10 SCC 108,

4. Naim Ahamed Vs St. (NCT of Delhi) - 2023
SCC OnLine SC 89,

5. St. of Karnataka Vs L. Muniswamy - (1977) 2
SCC 699,

6. Anand Kumar Mohatta Vs St. (NCT of Delhi) -
(2019) 11 SCC 706,

7. R.K. Vijayasarathy Vs Sudha Seetharam,
(2019) 16 SCC 739,

8. Rashmi Chopra Vs St. of U.P., (2019) 15 SCC
357,

9. Jiyaullah Vs St. of U.P., 2023 SCC OnLine All
858,

10. Aruni Mittal Vs St. of U.P., 2023 SCC OnLine
All 3961,

11. Kaini Rajan Vs St. of Kerala, (2013) 9 SCC
113,

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

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

14. Yedla Srinivasa Rao VS St. of A.P., (2006) 11
SCC 615,

15. Uday Vs St. of Karn., (2003) 4 SCC 46,

16. St. of Har. Vs Bhajan Lal - 1992 Supp (1)
SCC 335 : 1992 SCC (Cri) 426,

17. Vineet Kumar Vs St. of U.P., (2017) 13 SCC
369.

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

1. Heard Sri V.P. Srivastava, learned
Senior Advocate assisted by Sri Vijit
Saxena, learned counsel for the applicant
and Sri Jagdev Singh, learned counsel for
the opposite party no. 2 and Mohd. Shoaib
Khan, learned A.G.A. for the Staterespondent.

2. The instant application under
Section 482 Cr.P.C. has been filed seeking
quashing of Charge-sheet dated 09.08.2018
in S.T. No. 826 of 2018 as well as the entire
criminal proceedings in Case Crime No. 59
of 2018 under Sections 376 and 386 I.P.C.,
Police Station- Mahila Thana, District-
Moradabad, pending in the court of
Sessions Judge, Moradabad.

FACTS

3. The brief facts of the instant
case are that on 21.03.2018, the opposite
party no.2 had lodged an F.I.R. being Case
10 All. Shrey Gupta Vs. State of U.P. & Anr.
401
Crime No. 0059 of 2018 for the offences
u/S 376 and 386 I.P.C. at the Woman Police
Station, District- Moradabad. It has been
submitted by the opposite party no. 2/ the
informant that she is the resident of
Mohalla H-9, Lajpat Nagar near Guru
Govind Singh Park, Police Station-Katghar,
District- Moradabad. It is alleged that her
husband- Sanjay Goyal, was suffering from
disease of sugar for last 15 years and was
unable to move frequently and despite
various treatments given the same could
not improve his condition. In the meantime,
her
husband
has
introduced
the
applicant/Shrey
Gupta,
and
told
the
informant that the applicant is a faithful
person and he will take her care after him.
Gradually, the applicant became very close
to the informant and allegedly told the
informant that her husband would be alive
only for few more days, thereafter, both of
them would marry. Taking the informant in
his confidence and promising her to marry
in future, he started to have physical
relationship with the informant. The husband
of the informant had ultimately died on
29.05.2017 and even after the death of her
husband the applicant continued to visit the
home of the informant and continued to have
physical relationship with the applicant in the
home as well as in hotels outside. The
informant had many a time asked him to
marry her, then, he avoided the marriage
telling that first let her sister be married and
thereafter he will marry her. Subsequently,
the informant came to know about the
engagement of the applicant with one other
lady on 31.12.2017. Then, the informant told
the applicant that he was continuously raping
her on the pretext of promise to marry and
now he has got engaged with some other
lady.

4. Then, on 17.01.2018 at around
6:00 P.M. the applicant allegedly gave a
phone call to the informant asking her to
come to Rampur Doraha, where he will
marry her in a temple and after marriage they
will get the marriage registered in court. It is
further alleged in the F.I.R. that on such
assurance of the applicant herein the
informant had reached at Rampur Doraha,
then, the applicant told her to come with him
and they will marry and thereafter, the
applicant had taken her at a godown situated
at Rampur Doraha and thereafter by putting a
countrymade pistol on the head of the
informant, he forcibly committed rape on her
and also prepared a video clipping and
thereafter told that he will not marry her and
if she tells about the incident to anyone else,
her video clip shall be made public.
Thereafter, the informant allegedly came
back to her house and it is further alleged that
thereafter the applicant has started demanding
Rs. 50,00,000/- within 15 days and threatened
that if his demand is not, fulfilled, then he
will kill both her sons and make the video
clip public.

5. On the aforesaid allegations the
instant F.I.R. was registered against the
applicant herein. Thereafter, the matter was
investigated by the police official and after
recording the statements of various persons,
who have alleged that there was a financial
dispute between the applicant and the
informant with regard to an amount of Rs.
1,00,00,000/-, which is to be paid by the son
of the informant to the applicant and the
instant F.I.R. was lodged just to avoid the said
payment of Rs. 1,00,00,000/-. Son of the
informant has also admitted the fact that the
applicant herein was working with his father
and also used to visit his home but he is not
aware about any relationship of the applicant
with the informant.

6. During the investigation the Call
Detail Records (C.D.R.) reports were also
402 INDIAN LAW REPORTS ALLAHABAD SERIES
received and wherefrom the Investigation
Officer has concluded that the place of
incident as alleged in the F.I.R., the C.D.R.
report of applicant and the opposite party
no.2 are negative and it was further stated
that the informant is a fifty years old
woman, who has two sons of 27 years and
25 years of age and the applicant herein is
also aged about 26 years and after the death
of the husband of the informant her son
was running the business of his father and
he was liable to make a payment of Rs.
1,00,00,000/- to the applicant and the
medical report has also not supported the
incident of rape.

7. On the basis of the aforesaid, the
Final
Report
dated
06.05.2018
was
prepared by the earlier IO. However, the
aforesaid Final Report was cancelled by the
Senior Superintendent of Police and further
investigation was directed on the following
points:

(i)
What
was
the
relationship between the informant
and the applicant and since when
and on what basis they came and
became intimate to each other ? ;
(ii) The authentication of
the 16 photographs, which were
produced by the informant during
her 161 and 164 Cr.P.C. statements
and out of which, in photograph
nos. 2, 5, 7, 9, 12, 15 & 16, where
parties are looking in objectionable
conditions are required to be
verified;
(iii) The details of the
hotels and record of their arrival
and departure from the hotel, where
and
when
the
applicant,
the
informant had gone on which hotel
after the death of the husband of
the informant;
(iv)The
Marriage
Certificate issued by Arya Samaj
Mandir, Amritpuri B (Reg.) New
Delhi, which was found to be a
false certificate are required to be
reinvestigated
and
who
had
prepared the same and for what
purpose.
Was
there
consent
between the the parties? If yes, then
what was the object of obtaining
such marriage certificate?;
(v) Subsequently, it came
to the knowledge of the informant
that on 31.12.2017 the applicant
had got engaged with one other
lady. When she talked to him he
told that he had got engaged due to
the pressure from the family but he
would
marry
the
informant.
Thereafter, on 17.01.2018, the
applicant had allegedly called her
at Godown in Rampur Doraha,
where he bluntly refused to marry
her and thereafter had forcibly
raped her while keeping pistol on
her head and has also prepared
video clip of such rape and
thereafter
he
demanded
Rs.
50,00,000/-
else
threatened
to
defame her and her family and will
also to kill the entire family:

(vi) With regard to the
other
allegations
that
is
on
17.01.2018
at
6:00
P.M.
the
applicant had allegedly called the
informant at Rampur Doraha and
had taken her to the godown, where
he
had
committed
rape
after
keeping the countrymade pistol on
her head, for which the appropriate
CDR reports are required to be
examined and location of the
applicant and the opposite party no.
2 is required to be verified.
10 All. Shrey Gupta Vs. State of U.P. & Anr.
403
(vii) By which vehicle the
informant had gone to Rampur
Doraha, the driver of the vehicle
should also be enquired;
(viii) The guards situated at
Rampur Doraha are also required to
be examined and with regard to the
person who came on the relevant
date at the godown;
(ix) If any CCTV footage is
available
with
regard
to
the
godown
situated
at
Rampur
Doraha, the footage of the same be
procured;
(x) With regard to the
allegation of the informant that the
applicant had prepared a video clip,
thereby
had
demanded
Rs.50,00,000/- and if not given he
will kill both her sons, in this
connection firstly the video clip
should be obtained and if there is
possibility
of
relationship,
the
mobile
should
be
taken
into
possession and data should be
recovered;
(xi) The final report has
been prepared on the basis of there
being dues towards the opposite
party no. 2 to the tune of Rs.
1,00,00,000/- but when and for
what purpose the said amount was
given by the applicant, the evidence
in this regard be collected; and
xii) With regard to amount
of Rs. 1,00,00,000/-, the statement
of Munshi Kaish Alam has been
obtained whereas the informant has
also given the affidavit of the said
Kaish Alam, which has been
alleged to have been obtained by
the informant forcibly, therefore,
whatever interrogation of said
Kaish
Alam
was
done,
the
videography of the same must be
prepared
in
presence
of
the
witnesses. During the investigation,
the video recording in presence of
the witness must be prepared.

8. On the basis of such directions
of Senior Superintendent of Police the
investigation was taken over by the SHO-
Rajini Dwivedi, who has subsequently filed
the charge-sheet dated 09.08.2018 and vide
order dated 28.09.2018, the trial court has
taken cognizance on the aforesaid charge-
sheet and warrant was prepared under
Section 209A Cr.P.C. against the applicant
herein against which the instant application
has been filed by the applicant herein.

9. After the cognizance was taken
by the trial court, the applicant has
approached this Court by filing Criminal
Miscellaneous Bail Application No. 38272
of 2018 (Shrey Gupta vs. State of U.P.),
which was disposed of vide order dated
09.10.2018 and the bail application of the
applicant herein was allowed. While granting
bail this Court has taken into consideration
the long-standing acknowledged relationship
between the informant and the applicant
including physical relationship stretched
across period of 12-13 years, as mentioned in
the statement of the prosecutrix under Section
164 Cr.P.C. statement and the inherent nature
of allegations regarding the incident dated
17.01.2018, delay in lodging the F.I.R. and
the immediate cause for the prosecutrix to act
upon learning that the applicant had been
engaged to a younger woman and has
committed breach of promise to marry the
informant
and
the
alleged
Whatsapp
messages from the informant to the applicant
taken on their face value.

10. In her 164 Cr.P.C. statement,
the informant has categorically admitted
that the applicant herein became a family
404 INDIAN LAW REPORTS ALLAHABAD SERIES
friend in the year 2005, as her husband was
ill since last 15 years and in relation to the
said business of her husband the informant
used to go alongwith the applicant to bank
and office etc. and she has developed a love
relationship and in these 12-13 years they
had
continuous
physical
relationship
number of times. It is further stated by the
informant that during this period the
applicant has established his own business
with the help of the informant and also by
some
misappropriation
of
money.
Ultimately, the husband of the informant
had died on 29.05. 2017. Thereafter, the
informant has asked the applicant to marry
her, which was avoided by the applicant on
the pretext of his DIL case.

11. In the medical examination,
which was conducted at District Hospital,
Moradabad, on 26.03.2018, no alive or
dead spermatozoa was found and as per the
medical report no definite opinion about
rape committed on the informant was
given. There was no external injury on the
body of the victim.

SUBMISSIONS
BY
APPLICANT

12. Learned Senior Counsel for the
applicant submits even if the allegations
made in the F.I.R. as well as in the
statement under Sections 161 and 164
Cr.P.C., coupled with the medical report
and the entire material available on record,
it is crystal clear that the informant was
having a continuous consensual physical
relationship with the applicant for about
12-13 years. Even when her husband was
alive and she was also having the children
near the age of the applicant herein.
Therefore, learned counsel for the applicant
submits that by no stretch of imagination
such an alleged continuously consensual
physical relationship would amount to rape
within the meaning of Sections 375 and
376 I.P.C.

13. In support of his submissions
learned Senior Counsel for the applicant
has relied upon the judgements of Apex
Court in Pramod Suryabhan Pawar v.
State of Maharashtra, (2019) 9 SCC 608,
Dhruvaram Murlidhar Sonar vs. State of
Maharashtra : (2019) 18 SCC 191,
Maheshwar Tigga v. State of Jharkhand,
(2020) 10 SCC 108, Naim Ahamed v. State
(NCT of Delhi), 2023 SCC OnLine SC 89,
State of Karnataka v. L. Muniswamy,
(1977) 2 SCC 699, Anand Kumar Mohatta
v. State (NCT of Delhi), (2019) 11 SCC
706,
R.K.
Vijayasarathy
v.
Sudha
Seetharam, (2019) 16 SCC 739, Rashmi
Chopra v. State of U.P., (2019) 15 SCC
357 and the judgements of this Court in
Jiyaullah v. State of U.P., 2023 SCC
OnLine All 858 and Aruni Mittal v. State
of U.P., 2023 SCC OnLine All 3961,
therefore, prays for quashing of the entire
proceedings of the instant case against the
applicant herein.

SUBMISSIONS
BY
INFORMANT

14. Per contra, learned counsel for
the opposite party no.2 submits that even if
the lady was having a consensual physical
relationship for long a period of time,
however, that does not give a license to
forcibly establish physical relationship
against her will. When such relationship
between the parties becomes estrange and
if such physical relationship is established
at the gun point against the will of the
informant, that will amounts to rape. It is
further submitted by learned counsel for the
opposite party no.2 that since from the
beginning, the relationship of the informant
10 All. Shrey Gupta Vs. State of U.P. & Anr.
405
started with the applicant only on the basis
of his promise to marry the informant after
the death of the husband of the informant.
Had there been no such promise on the part
of the applicant, the informant would not
have entered into such a relationship with
the applicant herein and the applicant has
continuously exploited the informant for a
long period of time on the pretext of
marriage and subsequently he has refused
to marry the informant and has got engaged
with some other lady and subsequent
thereto, had forcibly raped the informant.
Therefore, a clear case of rape, committed
by the applicant is made out against him.
Subsequently,
the
applicant
has
also
prepared a video clip of such physical
activity and on the pretext of the same he
has started blackmailing the informant and
had demanded Rs. 50,00,000/- from the
informant and has threatened the informant
to kill her sons and also defame her and kill
her entire family. Therefore, the allegation
as made are fully established and it cannot
be said that no case whatsoever is made out
against the applicant herein. Therefore,
learned counsel for the opposite party no.2
submits that no interference is called for in
the instant matter and allegation that the
instant F.I.R. has been lodged just to avoid
the payment of dues of Rs. 1,00,00,000/-, is
a subject matter of trial and at this stage no
definite opinion can be formed. Thus, he
seeks dismissal of the instant application
filed by the applicant herein.

SUBMISSIONS BY STATE

15. Learned A.G.A. submits that
though from the facts as narrated in the
F.I.R. as well as in the statements under
Sections 161 and 164 Cr.P.C. it is clear that
the applicant and the informant were
having the continuous consensual physical
relationship,
however,
despite
such
relationship it does not give him implied
license to commit rape at any point of time
against the will of the informant. On
17.01.2018,
allegedly
applicant
has
committed rape at the gun point, which has
been alleged in the F.I.R. and also in her
164 Cr.P.C. statement, therefore, a prima
facie offence under Section 376 I.P.C. is
made out against the applicant. Further,
allegations with regard to extortion of
money is concerned there are sufficient
allegations that a video clip was prepared
and thereafter the applicant had tried to
extort an amount of Rs. 50,00,000/- from
the informant, failing which he has
threatened her to kill both her sons and
defame the informant if his demands are
not fulfilled, by circulating the said video
in public. Therefore, learned A.G.A.
submits that there are sufficient allegations
as well as the material available on record
to establish the aforesaid offence against
the
applicant
herein.
Therefore,
no
interference is called for while exercising
the jurisdiction under Section 482 Cr.P.C.

CONSIDERATION BY COURT

16. Having considered the rival
submissions made by learned counsel for
the parties, this Court has carefully gone
through
the
record
of
the
case.
Undisputedly, the admitted fact in the
instant case are that the informant, at the
time of lodging the F.I.R. was aged about
49 years as is reflected from her statement
under Section 164 Cr.P.C. and the applicant
herein was much younger than the
informant. In the instant case though the
charge-sheet was filed for the offences
under Section 376 as well as 386 I.P.C.,
learned Magistrate has taken cognizance
against the applicant only for the offence
under Section 376 I.P.C. Therefore, before
proceeding further it would be relevant to
406 INDIAN LAW REPORTS ALLAHABAD SERIES
note the provisions of Sections 375 and 376
I.P.C., which reads as under:

"Section 375. Rape-
A man is said to commit
"rape" if he-
(a) 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
(b) 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
(c) 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
(d) 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:
under the circumstances
falling under any of the following
seven description:-
Firstly- Against her will.
Secondly.-
Without
her
consent.
Thirdly.- With her consent,
when
her
consent
has
been
obtained by putting her or any
person in whom she is interested,
in fear of death or of hurt.
Fourthly.-
With
her
consent, when the man knows that
he is not her husband and that her
consent is given because she
believes that he is another man to
whom she is or believes herself to
be lawfully married.
Fourthly.- With her consent
when, at the time of giving such
consent, by reason of unsoundness
of mind or intoxication or the
administration by him personally
or
through
another
of
any
stupefying
or
unwholesome
Substance,
she
is
unable
to
understand
the
nature
and
consequences of that to which she
gives consent.
Sixthly.- With or without
her consent, when she is under
eighteen years of age.
Seventhly.- When she is
unable to communicate consent.
Explanations
1. For the purposes of this
section, "vagina" shall also include
labia majora.
2.
Consent
means
an
unequivocal voluntary agreement
when
the
woman
by
words,
gestures or any form of verbal or
non-verbal
communication,
communicates
willingness
to
participate in the specific sexual
act;
Provided that a woman
who does not physically resist to
the act of penetration shall not by
the reason only of that fact, be
regarded as consenting to the
sexual activity.
Exceptions

1. A medical procedure or
intervention shall not constitute
rape.
2. Sexual intercourse or
sexual acts by a man with his own
wife, the wife not being under
fifteen years of age, is not rape.
10 All. Shrey Gupta Vs. State of U.P. & Anr.
407
Section 376. Punishment
for rape.
1. Whoever, except in the
cases provided for in sub-section
(2),
commits
rape,
shall
be
punished
with
rigorous
imprisonment of either description
for a term which shall not be less
than ten years, but which may
extend to imprisonment for life,
and shall also be liable to fine.
2. Whoever-
(a) being a police officer,
commits rape,
i. within the limits of the
police station to which such police
officer is appointed; or
ii. in the premises of any
station house; or
iii. on a woman in such
police officer's custody or in the
custody
of
a
police
officer
subordinate to such police officer;
or
(b) being a public servant,
commits rape on a woman in such
public servant's custody or in the
custody
of
a
public
servant
subordinate to such public servant;
or
(c) being a member of the
armed forces deployed in an area
by
the
Central
or
a
State
Government commits rape in such
area; or

(d)
being
on
the
management or on the staff of a
jail, remand home or other place of
custody established by or under
any law for the time being in force
or of a women's or children's
institution, commits rape on any
inmate of such jail, remand home,
place or institution; or
(e)
being
on
the
management or on the staff of a
hospital, commits rape on a woman
in that hospital; or
(f)
being
a
relative,
guardian or teacher of, or a person
in a position of trust or authority
towards the woman, commits rape
on such woman; or
(g) commits rape during
communal or sectarian violence; or
(h) commits rape on a
woman
knowing
her
to
be
pregnant; or
(i) [******]
(j) commits rape, on a
woman
incapable
of
giving
consent; or
(k) being in a position of
control or dominance over a
woman, commits rape on such
woman; or
(l) commits rape on a
woman suffering from mental or
physical disability; or
(m) while committing rape
causes grievous bodily harm or
maims or disfigures or endangers
the life of a woman; or
(n)
commits
rape
repeatedly on the same woman,
shall be punished with
rigorous imprisonment for a term
which shall not be less than ten
years, but which may extend to
imprisonment for life, which shall
mean
imprisonment
for
the
remainder of that person's natural
life, and shall also be liable to fine.
3. Whoever, commits rape
on a woman under sixteen years of
age shall be punished with rigorous
imprisonment for a term which
shall not be less than twenty years,
but
which
may
extend
to
408 INDIAN LAW REPORTS ALLAHABAD SERIES
imprisonment for life, which shall
mean
imprisonment
for
the
remainder of that person's natural
life, and shall also be liable to fine:
Provided that such fine
shall be just and reasonable to
meet the medical expenses and
rehablitation of the victim:
Provided further that any
fine imposed under this sub-section
shall be paid to the victim. "

17. From the plain reading of
Section 375 I.P.C., if a man commits the
activities described in Clause (a), (b), (c) &
(d), against the will of a woman and without
her consent or with her consent, when such
consent is obtained by putting her or any
person, in whom she is interested, in fear of
death or hurt, is said to have committed rape
on such woman. The consent has been
defined in Explanation 2 to Section 375 I.P.C.
and the consent means an unequivocal
voluntary agreement when the woman by
words, gestures or form of verbal or non
verbal
communication,
communicates
willingness to participate in any sexual act.
However, mere non resistance of a woman
could not be regarded as she consented to
sexual activity and any person who commits
rape on a woman, which is not covered under
sub-section (2) of Section 376 I.P.C., would
be punishable for a term, which shall not be
less than 10 years, but may extend to an
imprisonment for life.

CONSENT

18. Section 90 of the I.P.C. further
defines the consent if given under fear or
misconception is no consent. Section 90 of
the I.P.C. reads as under:

"S.90 Consent known to
be
given
under
fear
or
misconception: A consent is not
such a consent as is intended by
any section of this Code, if the
consent is given by a person under
fear
of
injury,
or
under
a
misconception of fact, and if the
person doing the act knows, or has
reason to believe, that the consent
was given in consequence of such
fear or misconception; 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."

19. In Dhruvaram Murlidhar
Sonar (supra), the Apex Court has held that
an inference as to consent can be drawn only
based on evidence or probabilities of the case.
Consent is also stated to be act of reason
coupled with deliberations. It denotes an act,
will of mind of a person to promote the doing
of the act complaint of.

20. In Pramod Suryabhan Pawar
(supra), the Apex Court has held that where a
woman does not consent to the sexual act,
described in the main body of Section 375
I.P.C., the offence of rape has occurred
while Section 90 I.P.C. does not define the
term
consent.
A
consent
based
on
misconception of fact is not consent in the
eyes of law.

21. In Kaini Rajan v. State of
Kerala, (2013) 9 SCC 113, it has been held
by the Apex Court, which reads as under:
10 All. Shrey Gupta Vs. State of U.P. & Anr.
409
"12........... "Consent", for
the
purpose
of
Section
375,
requires voluntary participation not
only
after
the
exercise
of
intelligence
based
on
the
knowledge of the significance and
moral quality of the act but after
having fully exercised the choice
between resistance and assent.
Whether there was consent or not,
is to be ascertained only on a
careful
study
of
all
relevant
circumstances. "
(Emphasis Supplied)

22. Thus, for the purpose of the
offence under Section 375 I.P.C., the
consent needs the voluntary participation of
the prosecutrix in the physical relationship
with the accused. The consent of such
physical relationship would only be vitiated
when
it
was
given
under
some
misconception of fact or under fear of
injury to the victim or any person in whom
the victim was interested.

23. In the instant case, at the time
of initiation of the physical relationship
with the applicant the prosecutrix, her
husband
was
alive.
Therefore,
the
allegation that the applicant had promised
her to marry was of no consequence as
prosecutrix herself was not having any
capacity to marry with the applicant at the
relevant time and such consensual physical
relationship between the applicant and the
prosecutrix had continued for about 12-13
years without any objection on the part of
the prosecutrix. Thus, in the considered
opinion of the Court the aforesaid physical
relationship between the applicant and the
prosecutrix was a long-standing consensual
adulterous physical relationship, which
would not amount to rape within the
meaning of Section 375 I.P.C.
PROMISE TO MARRY

24. 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."
(Emphasis Supplied)

25. In Deepak Gulati v. State of
Haryana, (2013) 7 SCC 675 , the Apex
Court has held as under:

"21.
..........There
is
a
distinction
between
the
mere
breach of a promise, and not
fulfilling a false promise. Thus, the
court must examine whether there
was made, at an early stage a false
promise
of
marriage
by
the
accused; and whether the consent
involved was given after wholly
understanding
the
nature
and
consequences of sexual indulgence.
There may be a case where the
410 INDIAN LAW REPORTS ALLAHABAD SERIES
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, 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 so. Such cases
must be treated differently......."
...............
24. Hence, it is evident that
there must be adequate evidence to
show that at the relevant time i.e. at
the initial stage itself, the accused
had no intention whatsoever, of
keeping his promise to marry the
victim. There may, of course, be
circumstances, when a person having
the best of intentions is unable to
marry the victim owing to various
unavoidable
circumstances.
The
"failure to keep a promise made with
respect to a future uncertain date,
due to reasons that are not very clear
from the evidence available, does not
always amount to misconception of
fact. In order to come within the
meaning of the term "misconception
of fact", the fact must have an
immediate relevance". Section 90
IPC cannot be called into aid in such
a situation, to pardon the act of a girl
in entirety, and fasten criminal
liability on the other, unless the court
is assured of the fact that from the
very beginning, the accused had
never really intended to marry her."
(Emphasis Supplied)

26. In Yedla Srinivasa Rao v. State
of A.P., (2006) 11 SCC 615, the Apex Court
has held as under:
"10. It appears that the
intention of the accused as per the
testimony of PW 1 was, right from
the beginning, not honest and he
kept on promising that he will
marry
her,
till
she
became
pregnant. This kind of consent
obtained by the accused cannot be
said to be any consent because she
was under a misconception of fact
that the accused intends to marry
her, therefore, she had submitted to
sexual intercourse with him. This
fact is also admitted by the accused
that he had committed sexual
intercourse which is apparent from
the testimony of PWs 1, 2 and 3
and before the panchayat of elders
of the village. It is more than clear
that the accused made a false
promise that he would marry her.
Therefore, the intention of the
accused right from the beginning
was not bona fide and the poor girl
submitted to the lust of the accused,
completely being misled by the
accused who held out the promise
for marriage. This kind of consent
taken by the accused with clear
intention not to fulfil the promise
and persuading the girl to believe
that he is going to marry her and
obtained her consent for the sexual
intercourse
under
total
misconception, cannot be treated to
be a consent.................
(Emphasis Supplied)

27. In Uday v. State of Karnataka,
(2003) 4 SCC 46, where the complainant
was a college going student, when the
accused promised to marry her, the
complainant in statements submits that she
was aware that there will be significant
opposition from both the complainant and
10 All. Shrey Gupta Vs. State of U.P. & Anr.
411
accused family to their marriage, knowing
fully well she engaged in sexual intercourse
with the accused, however, kept such
relationship secret from her family. In such
circumstances the Apex Court has observed
that the accused promised to marry the
complainant
was
not
of
immediate
relevance to the complainant's decision
created in sexual intercourse with the
accused, rather, it was motivated by her
sexual desires and other factors. The Apex
Court has observed as under:

"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 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. As stated by
the prosecutrix the appellant also
made such a promise on more than
one
occasion.
In
such
circumstances the promise loses all
significance, particularly when they
are overcome with emotions and
passion and find themselves in
situations and circumstances where
they, in a weak moment, succumb to
the temptation of having sexual
relationship. This is what appears
to have happened in this case as
well, and the prosecutrix willingly
consented
to
having
sexual
intercourse with the appellant with
whom she was deeply in love, not
because he promised to marry her,
412 INDIAN LAW REPORTS ALLAHABAD SERIES
but because she also desired it.