Judicial Analysis Court Copy Headnote Facts Arguments Court observation

ALLAHABAD HIGH COURT
Rahul Chaturvedi and Nand Prabha Shukla, JJ.
Informant/Victim – Appellant
versus
State of U.P. and Anr. – Respondents
Criminal Appeal No.4849 of 2024
Decided on 30.5.2024

Counsel for the Parties:
For the Appellant:Ashutosh Mishra and Kripa Kant Pandey, Advocates
For the Respondents: G.A.

IMPORTANT POINT
Misconception of fact – There is no straitjacket formula for determining whether consent given by prosecutrix to sexual intercourse is voluntary or whether it is given under misconception of fact – There is a difference between giving a false promise and committing breach of promise by accused.

Headnote:
(A) Indian Penal Code, 1860 – Section 90 – Misconception of fact – If consent is given by complainant under misconception of fact, it is vitiated – There is no straitjacket formula for determining whether consent given by prosecutrix to sexual intercourse is voluntary or whether it is given under misconception of fact – There is a difference between giving a false promise and committing breach of promise by accused – In case of false promise, accused right from beginning would not have any intention to marry with prosecutrix and would have cheated or deceived prosecutrix by giving a false promise to marry her only with a view to satisfy his lust, whereas in case of breach of promise, one cannot deny a possibility that accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or circumstances beyond his control, which prevented him to fulfill his promise. (Para 26)
(B) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1985 – Section 3(2)(v) – Indian Penal Code, 1860 – Sections 376, 504 and 506 – Criminal Procedure Code, 1973 – Section 372 – Rape, insult and criminal intimidation – Misconception of fact – Appeal against acquittal – Sexual intercourse on false promise of marriage – Both of them are major and they understand gravity of situation and far reaching repercussion of pre-marital sex and still they maintained relationship at different places – Trial court has taken a plausible and possible view of matter on appreciation of entire evidence on record, which cannot be substituted by this Court by taking a different view – Appeal rejected. (Paras 31, 36, 37, 38, 39 and 40)
Result: Appeal rejected.

JUDGMENT

Heard Sri Ashutosh Mishra, Sri Kripa Kant Pandey, learned counsel for the appellant and Learned AGA for the State.

2. The instant appeal is under Section 14(A)(1) of the SC/ST Act 1989 read with Section 372 Cr.P.C. spear headed against Judgement and Order of acquittal dated 08.02.2024 passed by Additional Sessions Judge, SC/ST Act, Court No.14, Prayagraj, whereby learned Sessions Judge while deciding SST No. 15(706) of 2020 (State Vs. Madan Yadav) arising out of Case Crime No. 1008 of 2019 under Section 323, 504, 506 and 376 IPC and Section 3(2)(V) of SC/ST Act, P.S. Colonelganj, District Prayagraj have convicted Madan Yadav only under Section 323 IPC and awarding six months S.I. and Rs. 1000/- fine only acquitting him from all the serious charges under Section 376, 504, 506 IPC and Section 3(2)(v) of SC/ST Act.

3. Aggrieved by the aforesaid Judgement and Order the prosecutrix/victim of Case Crime No. 1008 of 2019 is proposing to invoke the powers of this Court under Section 372 Cr.P.C. read with Section 14(A)(1) of SC/ST Act, with the following prayer:—

“It is therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to allow the present criminal appeal against the acquittal of the opposite party no.2 and set aside the judgement and order dated 08.02.2024 passed by the Additional Special Judge (SC/ST Act), Court No.14, Prayagraj in Sessions Trial No. 15(706) of 2020 (State of U.P. Vs. Madan Yadav) arising out of case crime no. 1008 of 2019 under Section 323, 504, 506, 376 IPC and Section 3(2)(v) Scheduled Caste and Scheduled Tribes (Prevntion of Atrocities) Act, 1989, Police Station Colonelganj, District Prayagraj, whereby the accused/opposite party no.2 has been acquitted for the offence under section 3(2)(v) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities ) Act, 1989 and has only awarded lessor conviction under section 323 of IPC for six months simple imprisonment along with fine of Rs. 1000/- and in default of fine one months additional convict and sentence the opposite party no.2 as according to law. And/or pass such other and further order as this Hon’ble Court may deem fit and proper under the facts and circumstances of the case.”

4. We have heard Sri Ashutosh Mishra and Sri Kripa Kant Pandey, learned counsel for the appellant to their satisfaction and learned AGA for the State and perused the impugned Judgement and Order.

5. After hearing learned counsel the appellant on the admission, we are proposing to decide the appeal at this stage itself.

6. Before coming to the merit of the case, it is imperative to give a bare skeleton facts of the case, so as to appreciate the controversy in its correct perspective.

7. The accused-respondent Madan Yadav is a charge sheeted accused under Section 323, 504, 506 and 376 IPC and Section 3(2)(V) of SC/ST Act.

8. Vide Ext. (Ka-1) an application was given by the Prosecutrix to SSP, Prayagraj, that during her educational days, she met with Madan Yadav in the year 2014. On the pretext of helping her in her studies and providing notes etc. they developed certain amount of intimacy. During passage of time, this relationship have crossed all the limits of decency and they got involve in pre-marital sex with each other. Not only this, for the purposes of helping her studies, the accused often call her to ‘Yadav lodge’, Laxmi Chauraha, Allahabad for 2-3 days and thereafter leave her. As per prosecution story, during this time he has extended promise that he would marry her. Meanwhile, for the purposes of education, she left to Lucknow, and has taken admission in some other University. Even then, Madan Yadav came to Lucknow and called her to ‘Nayan Atithigrih’ and ‘Hotel Katiyar International’ near PGI, Lucknow and have a sex with her.

In the year 2018, Madan Yadav got a service in C.M.P. Degree College, Allahabad. Thereafter, there was a change in his behaviour and attitude qua her. On 17.10.2019, when she reached to C.M.P. Degree Colle