Point of Law: Rape - Conviction confirmed and Bail rejected - Accused who gave promise to prosecutrix to marry, did not have any intention to marry and prosecutrix gave consent for sexual intercourse on such an assurance by accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per S. 90 of IPC and, in such a case, such a consent would not excuse offender and such an offender can be said to have committed rape as defined under S. 375 of IPC and can be convicted for offence under S. 376 of IPC.

JUDGMENT :

1. Heard learned counsel for the appellant, learned counsel for the respondent no.2 and learned AGA for the State and perused the record.

2. This criminal appeal has been filed by appellant Harshvardhan Yadav against the impugned order dated 25.02.2021 of learned Special Judge, SC/ST Act, Kanpur Nagar, passed in Bail Application No. 729 of 2021 (Harshvardhan Yadav vs State of UP), arising out of Case Crime No. 136 of 2020, under Section 376 IPC and Section 3(2)5 of SC/ST Act, P.S. Collectorganj, District-Kanpur Nagar by which bail application of appellant has been rejected.

3. Aggrieved by the impugned bail rejection order, the appeal has been filed under section 14 of the SC/ST Act. Impugned order has been challenged on the ground that the appellant is in jail since 26.11.2020 and there is no criminal history of the appellant. He has academic career and he was preparing for competition. On the basis of absolutely false allegation, the FIR has been lodged against him. No sign of rape has been found in the medical examination of the victim. During the investigation, the manager and waiter of the hotel gave statements to the Investigating Officer under Section 161 Cr.P.C. and have denied the alleged incident. They have stated that on that date in the morning at 7:30 both appellant and victim came in the hotel and disclosed their identity as husband and wife and demanded a room and the same was entered in the hotel register. They stayed there for about two and half hours. They had given their adhar card. From CCTV camera a pen drive was also prepared and was handed over to the Investigating Officer. The victim is educated lady and she is working as police constable in the UP Police and she was knowing the appellant since she was studying in a coaching with the appellant. The FIR has been lodged for the purpose of blackmailing and forcing the appellant for marriage. There is delay of about 17 hours in lodging the FIR. There is no eye witness of the alleged incident while the hotel is a public place. In the hotel, they have mentioned themselves as husband and wife. There is no question of rape committed by the appellant and there is all possibility in the circumstances of the case that she voluntarily consented for the relationship and there was no misconception of fact to her. Therefore, no case of rape is made out against the appellant and without proper investigation, IO has submitted charge sheet against him. The appellant and opposite party no.2 developed their relationship with the consent of each other and he never committed rape. Learned Session Judge has rejected the bail application and the impugned order is illegal, arbitrary and passed without applying judicial mind. He has not properly considered the material evidence available on record. In such circumstances, the learned Special Judge has committed error and illegality in rejecting the bail application and impugned order is liable to be set aside.

4. Counter Affidavit has been filed by the state and it has been submitted that the learned special judge has after considering all the material on record has passed a legal order and there is no infirmity in the impugned order. After investigation, charge-sheet has been filed against him. The victim is a police constable and belongs to scheduled caste. The appellant-accused himself called her in the hotel to finalize marriage talk and in the hotel-room committed rape on her. On the same day she lodged the FIR. She has supported the FIR version both in her statements given to IO under section 161 and to the magistrate under section 164 Cr.P.C. Therefore, the fact of rape committed by the appellant is fully corroborated. There is no defect or illegality in the impugned order and the appeal is liable to be dismissed.

5. The learned counsel for the appellant-accused has argued that the victim is a matured lady, a constable, and she willingly went to the hotel to meet the appellant. They knew each other from their coa