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Dileep Kumar Upadhayay vs State Of U.P. And Another on 7 November, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 65

Case :- APPLICATION U/S 482 No. – 39775 of 2019

Applicant :- Dileep Kumar Upadhayay

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Bipin Kumar Tripathi

Counsel for Opposite Party :- G.A.

Hon’ble Dinesh Kumar Singh-I,J.

Heard Sri Bipin Kumar Tripathi, learned counsel for the applicant and Sri B.A. Khan, learned A.G.A. for the State.

This Application under Section 482 Cr.P.C. has been filed with a prayer to quash the impugned charge-sheet dated 25.03.2019 having cognizance order dated 4.07.2019 as well as proceedings thereof bearing Case No. 1532 of 2019 under Sections 376 and 506 I.P.C. pending in the Court of A.C.J.M. First, Court No. 9, Basti originate from Case Crime No. 25 of 2019, P.S. Munderwa, District Basti.

Learned counsel for the applicant has argued that the accused applicant has been falsely implicated in this case by O.P. No. 2 who is married lady. Her marriage was solemnized in the year 1996 with one Vijay Nath and out of the wedlock, two children were born. Thereafter she left matrimonial home which led her husband, Vijay Nath to file a case under Section 9 of the Hindu Marriage Act for restitution of Conjugal Right but she did not return to her matrimonial home. Thereafter she developed illicit relation with one Hemant Jaiswal and because of that her husband, Vijay Nath had filed a divorce petition under Section 13 of Hindu Marriage Act for seeking divorce. O.P. No. 2 had also filed a case under Section 125 Cr.P.C. against her husband seeking maintenance, documents regarding which is annexed at annexure no. 4 of this petition. False allegation has been made by O.P. No. 2 against the the present accused applicant saying that the accused applicant has sexually exploited her giving her false assurance that he would marry her.

Reliance has been placed by learned counsel for the applicant upon Tilak Raj v. State of H.P., (2016) 4 SCC 140 in which in para 16 and 17 following is held:

“16. We have carefully heard both the parties at length and have also given our conscious thought to the material on record and the relevant provisions of the Penal Code, 1860 (in short “IPC”). In the instant case, the prosecutrix was an adult and mature lady of around 40 years at the time of the incident. It is admitted by the prosecutrix in her testimony before the trial court that she was in a relationship with the appellant for the last two years prior to the incident and the appellant used to stay overnight at her residence. After perusal of a copy of the FIR and the evidence on record the case set up by the prosecutrix seems to be highly unrealistic and unbelievable.

17. The evidence as a whole, including the FIR, testimony of the prosecutrix and the MLC report prepared by the medical practitioner clearly indicates that the story of the prosecutrix regarding sexual intercourse on false pretext of marrying her is concocted and not believable. In fact, the said act of the appellant seems to be consensual in nature. The trial court has rightly held thus:

23. If the story set up by the prosecutrix herself in the court is to be believed, it does come to the fore that the two were in a relationship and she well knew that the accused was duping her throughout. Per the prosecutrix, she had not succumbed to the proposal of the accused. Having allowed access to the accused to her residential quarter, so much so, even having allowed him to stay overnight, she knew the likely outcome of her reaction. Seeing the age of the prosecutrix which is around 40 years, it can be easily inferred that she knew what could be the consequences of allowing a male friend into her bedroom at night.

24. The entire circumstances discussed above and which have come to the fore from the testimony of none else but the prosecutrix, it cannot be said that the sexual intercourse was without her consent. The act seems to be consensual in nature.

25. It is also not the case that the consent had been given by the prosecutrix believing the accused’s promise to marry her. For, her testimony itself shows that the entire story of marriage has unfolded after 5-1-2010 when the accused was stated to have been summoned to the office of the DSP. Prior to 5-1-2010, there is nothing on record to show that the accused had been pestering the prosecutrix for any alliance. The prosecutrix has said a line in her examination-in-chief, but her cross-examination shows that no doubt the two were in a relationship, but the question of marriage apparently had not been deliberated upon by any of the two. After the sexual contact, some talk about marriage had cropped up between the two. Thus, it also cannot be said that the consent for sexual intercourse had been given by the prosecutrix under some misconception of marriage.”

Relying upon the said laws, it was argued that the victim was having consensual sex with the accused applicant, therefore Section 376 I.P.C. would not be made out.

Learned A.G.A. has vehemently opposed the prayer of quashing and has relied upon the law laid down by Hon’ble Supreme Court in Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra and Others 2018 SCC OnLine SC 3100 in which in para 23, following is held:

23. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine 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. 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.

After having pointed out the above-mentioned law, learned A.G.A. has further drawn attention of the Court towards the statement of the victim recorded under Section 164 Cr.P.C. in which the victim has stated that the accused had given her false assurance that he would marry her. It is further stated by the victim that she had two children from her earlier husband and has been living away from her earlier husband. The accused applicant had assured her that he would marry her and would also take care of her two children and for about six years, the victim continuously insisted that the accused applicant should marry her but he would not marry and continued to have physical relationship. She was got aborted twice by the accused applicant. The present accused wants to kill her. An amount of Rs. 2,50,000/- was also taken from O.P. No. 2 by the applicant for the treatment of his grand-mother and the said amount was not returned by him to her. A sleazy video clipping was also made of the O.P. No. 2 by applicant. Therefore it is argued that the victim was sexually exploited by the accused applicant knowingful well that she was living away from her first husband, giving her false assurance that he would marry her and would take care of her children. It cannot be said that offence under Section 376 I.P.C. is not made out.

I have perused the F.I.R. as well as material available on record.

It is recorded in the F.I.R. that the O.P. No.2 had been deserted by her husband about 12 years ago and when she was contesting cases against her husband and was during pairvy of those cases, she came into contact with accused applicant who disclosed himself to be a journalist and false assurance was given by him that he has relations with higher authorities and would help her to get justice and since then he started coming to her house and also disclosed that he was not a married man and he would adopt children of O.P. No. 2 and gave her assurance that he would marry her. On many occasions, he forcibly established relationship with the victim and continued to give false assurances of marrying her and threat is also given to the victim by him that video clipping of her would be made viral. She continued to tolerate torture. By threatening that, he would put video clipping on net, he continued to exploit her. The police after having investigated the case has submitted the charge-sheet against the accused applicant after recording as many as eight witnesses.

The statement of witnesses cannot be disbelieved at this stage as it needs full trial. As regards, reliance which has been placed by the learned counsel for the applicant on Tilak Raj’s case (Supra), in the said case, it was held that prosecutrix was an adult and had admitted that she was in relationship with the appellant for the last two years prior to the incident and therefore, it was held that the narration made by her was unrealistic and unbelievable. In the present case, the facts are different in the sense that the victim had been assured by the applicant that he would assist her and help her in getting justice in cases which she was contesting against her husband and applicant no. 1 knew that she was a lady having bad relation with her husband and was contesting so many cases and assurances were given by him to her that two children which were borne out of the first husband would also be taken care of by the accused applicant, under this assurance probably, the victim gave consent for the sexual act to be done.

It has to be seen on the basis of evidence as to whether the said consent of O.P. No.2 can be treated as free consent for having physical relationship with the accused applicant no.1, the same would require full trial.

The arguments which are made by the learned counsel for the applicant are related to factual aspect which cannot be seen at this stage in the proceeding under Section 482 Cr.P.C.

From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon’ble Supreme Court in cases of R. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604, State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.

The prayer for quashing the proceedings is refused.

However, the applicant may approach the trial court to seek discharge at appropriate stage, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here. If such an application is moved, the same shall be disposed of without being influenced by the observations of this Court.

The applicant shall appear before the court below within 30 days from today and may move an application for bail. If such an application is moved within the said time limit, the same would be disposed of in accordance with law. For a period of 30 days, no coercive action shall be taken against the accused applicant in the aforesaid case. But if the accused does not appear before the court below, the court below shall take coercive steps to procure his attendance.

With this direction, this Application under Section 482 Cr.P.C. is disposed of.

Order Date :- 7.11.2019

A. Mandhani

 

 

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