‘Sexual Offence Laws Women-Centric, Men Not Always At Fault’: Allahabad HC Upholds Acquittal In Rape Case

It is quite significant to note that the Allahabad High Court which is the biggest High Court in not just India but all over the world has in a most learned, laudable, landmark, logical and latest judgment titled Informant/Victim vs State of UP and Another in Criminal Appeal No. 4849 of 2024 and cited in Neutral Citation No. – 2024:AHC:102958-DB that was pronounced finally on 30.05.2024 has minced just no words to hold unflinchingly that in our country while laws concerning sexual offences are appropriately focused on protecting women, this does not imply that the male partner is invariably at fault. It must be noted here that the Division Bench comprising of Hon’ble Mr Rahul Chaturvedi and so also of Hon’ble Ms Nand Prabha Shukla who authored this notable judgment very rightly pointed out stating that, “No doubt, chapter XVI ‘Sexual Offences’ (of the IPC), is a women-centric enactment to protect the dignity and honour of a lady and girl and rightly so, but while assessing the circumstances, it is not the only and every time the male partner is at wrong, the burden is upon both of them.” We must note here that the Court was dealing with an appeal that had been filed by a woman against the acquittal of a man whom she claimed raped her on false promise of marriage.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Division Bench comprising of Hon’ble Mr Rahul Chaturvedi and so also of Hon’ble Ms Nand Prabha Shukla sets the ball in motion by first and foremost putting forth in para 2 that, “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.”

Needless to say, the Division Bench states in para 6 that, “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.”

As we see, the Division Bench observes in para 7 that, “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.”

To put things in perspective, the Division Bench envisages in para 8 that, “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 College to meet Madan Yadav, then he candidly informed her that he would not marry her. Now, he is a Faculty in the said Degree College and committed maar-peet with her. Dr. Prahlad was aware of their relationship. On 05.11.2019 when she visited to Madan’s place then Madan and his mother pushed her derogatorily and told her that they are ‘Yadav’ by caste and you are ‘Chamar (Scheduled Caste)’ and they would not permit her to even enter in her house. Thereafter she tried to pacify the situation and both of them met in Azad Park for 2-3 hours, where he keep on scolding her and uttered filthy ‘caste related abuses’ to her.”

To be sure, the Division Bench discloses in para 9 that, “The aforesaid factual story was given by her to SSP, Prayagraj against Madan Yadav and his mother with a prayer to lodge an FIR under the appropriate section of the IPC and SC/ST Act may be ordered. Accordingly in the G.D. Entry no. 35 on 18.11.2019 was registered at 14.29 hours.”

As it turned out, the Division Bench specifies in para 10 that, “After registering the case the police investigated the matter and has jotted down her 161 Cr.P.C. and 164 Cr.P.C. statement of the prosecutrix and thereafter holding indepth probe into the matter, charge sheet was submitted against ‘Madan Yadav’ only dropping the name of his mother from the charge sheet.”

It is worth noting that the Division Bench then notes in para 18 succinctly stating that, “Surprisingly, she did not permit her to have an internal pathological examination nor has given any pathological sample. When Dr. Pallavi Pandey was put for cross examination by the defence, then she candidly states that the prosecutrix has declined to get her internal examination or pathological examination and not even for the x-ray examination. When the doctor have insisted to carry out the aforesaid examination, she has refused to do so after putting her signature and the date over it. Under such circumstances, the doctor is not in a position to give any candid opinion that she was ever subjected to any sexual offensive against her by the accused-respondent as alleged. It is also suggested that by not permitting her to carry out the aforesaid tests and examination the victim deliberately wants to hide something very substantial which touches the core issue. To have internal medical examination is an integral part of investigation and the its absence the prosecution looses its credibility considerably. The interesting feature, is that the prosecutrix gave a strange explanation that since her brother was kidnapped by the accused-respondent and he was in the constant threat, that is the reason behind, she has never admitted herself for any desired medical examination. She further states that accused-respondents have extended threat to her that if she admit herself for the medical examination, her brother would be eliminated. In order to save the life of her brother, she has declined to get herself for any medical examination. She admits that she has never permitted herself for any internal medical examination. The interesting feature, is that there is nothing on record to establish this flimsy allegation that her brother was kidnapped by the accused-respondent and on this score she has denied for any medical examination. No complaint, written or oral to the local police official is on record to indicate that she or her brother is under threat, that’s reason for avoiding internal medical examination. In this circumstances, when there is no medical report with regard to the alleged allegation of serious sexual offensive against her by the accused-respondent goes, unsubstantiated in the absence of medical examination report. The explanation is a vain attempt on the part of the victim prosecutrix to cover up and hide something substantial which touches the core issue.”

Briefly stated, it cannot be glossed over that the Division Bench while taking potshots at prosecutrix version observes that, “In paragraph 16.5 of the impugned judgement attained significant, in which it has been mentioned that both the parties after attaining the age of majority establish a physical relationship among them in the year 2014 which lasted up to 2019. In such type of cases the consent of the prosecutrix attains important and significance. If the relationship is consensual, then the physical relationship would not come within the mischief of rape. But in the instant case, the entire castle of the prosecution case is based upon that on the false pretext of marriage the consent of the prosecution was extracted and after using her and after quenching the sexual lust the accused-respondents started ignoring her. Thus, no consent is defined in IPC and shall be construed, in common parlance. Consent, given by the person under fear of injury OR misconception of fact is not a valid consent in the eye of law. Then the Court has to gather from the individual’s conduct and attending circumstances. Assuming and admitting for the sake of argument, that accused-respondent extended a promise that, he would marry her and on this promise she consented to have pre-marital sex. Later on, she wriggled out from his promise then, could it be said, that he extracted her consent under misconception of fact? The facts of the present case indicates that this relationship starts from 2014 and lasted upto 2018. Both of them met several times, in hotel, lodges, guest houses at Allahabad or at Lucknow and spent quality time with each other. Is it a normal behaviour of a girl? She is surrendering her body and soul to a person who allegedly non-serious about their relationship. During this long period of five years, she never insisted to solemnise formal marriage first. Only after her break-up with the accused-respondent after five years period, she came to know that his partner was non-serious about his commitment. This story is nothing but a cock & bull story, for one’s own satisfaction.”

Be it noted, the Division Bench notes in para 26 that, “The bone of contention raised on behalf of the respondents is that the prosecutrix had given her consent for sexual relationship under the misconception of fact, as the accused had given a false promise to marry her and subsequently he did not marry, and therefore such consent was no consent in the eye of law and the case fell under the Clause – Second of Section 375 IPC. In this regard, it is pertinent to note that there is a difference between giving a false promise and committing breach of promise by the accused. In case of false promise, the accused right from the beginning would not have any intention to marry with the prosecutrix and would have cheated or deceived the 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 the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfill his promise. So, it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence under Section 376. As stated earlier, each case would depend upon its proved facts before the court.”

Most significantly, the Division Bench points out in para 29 that, “In paragraph 16.6 of the impugned judgement that the consent was taken from the prosecutrix after playing fraud upon her on the false promise of marriage. It is urged by the counsel for the appellant that relying upon his false word, she has surrender her body and soul before the accused-respondent. However, this argument gets nullify to the extent that the prosecutrix was already married woman with one Om Prakash in the year 2010 and that marriage is still hold good. To establish this fact DW-2 Bihari was examined, who states that the prosecutrix belongs to his family and she is his niece and who got married in 2010 with one Om Prakash Bantariya. This marriage continued for two years and since then she is residing all alone. He states he has attended the said marriage. DW4 Kamla Chandra Gautam, Gram Panchayat Adhikari have produced the ‘Parivar Register’ in which column no. 13, the prosecutrix and name of Om Prakash has mentioned. However, the prosecutrix has denied the factum of marriage with Om Prakash and pleaded ignorance as to how her name has mentioned in Parivar Register. On this score, the learned Trial Court has rightly given a finding that under circumstances, it is highly unlikely that the accused-respondent have trapped her in the false pretext of marriage. Secondly, assuming for the sake of argument, that some promise was extended to her but after the emergence of this new fact, that victim is already married to Om Prakash and that marriage still subsist, then any amount of promise to marry would automatically get evaporated.”

Quite significantly, the Division Bench hastens to add in para 30 stating that, “In paragraph 19 of the impugned judgement, so far as applicability of Section 3(2)(v) of the SC/ST Act, it is stated that the prosecutrix herself has projected that she is belongs to “Yadav Community” and when the accused-respondent came to know about her real caste, then he declined to marry her. In our society, the caste of the parties attains significant, which plays a vital role in giving a permanence to any relationship. It was revealed by prosecutrix herself that village Dharampur Nyay Panchayan Visanpur Block Saidpur, District Ghazipur in the voter list her father’s name is Hari Lal Yadav and in her own voter card her father’s name is Hari Lal Yadav and the prosecutrix has unable to clarify the situation. Therefore, it can be easily inferred that a lady who is already married and without dissolution of her earlier marriage and concealing her caste has maintained the physical relationship for good 5 years without any objection and hesitation and both of them have visited numbers of hotel, lodges at Allahabad and Lucknow and enjoyed the company of each other. It is difficult to adjudicate who is befooling whom?”

Most forthrightly and so also most remarkably, the Division Bench mandates in para 31 expounding that, “No doubt, chapter XVI “Sexual Offences”, is a women-centric enactment to protect the dignity and honour of a lady and girl and rightly so, but while assessing the circumstances, it is not the only and every time the male partner is at wrong, the burden is upon both of them. It is unswallowable proposition that a weaker sex is being used by the male partner for five good years and she keep on permitting him on so called false pretext of marriage. Both of them are major and they understand the gravity of the situation and the far reaching repercussion of pre-marital sex and still they maintained this relationship at different places, different cities, which clearly indicates that this acquisitions that she was subjected to sexual harassment and rape cannot be accepted and learned Trial Judge rightly so have given a benefit of doubt to the accused-respondent and relieved from the major charges pasted against accused-respondent.”

Adding more to it, the Division Bench points out in para 37 that, “Thus, after thrashing the entire evidences on record and after critically analyzing the submissions advanced and the findings recorded by the learned trial Court, we are of the considered opinion that the judgment of the trial court does not suffer from any illegality or non appreciation of evidence. The reasoning adopted by the learned trial Judge is quite sound and suitable which do not warrant any interference.”

As a corollary, the Division Bench then rightly holds in para 38 that, “We, therefore, find that the trial court has taken a plausible and possible view of the matter on appreciation of entire evidence on record, which cannot be substituted by this Court by taking a different view as per the law discussed above. We also do not find that the findings recorded by the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable.”

What’s more, the Division Bench deems it apposite to hold in para 39 that, “We have critically examined the entire judgement given by the learned trial judge and we are in the agreement with the conclusion drawn by the learned trial judge, which deserves no interference from this Court in exercise of power under Section 372 Cr.P.C. The judgement and order is firm footed and this appeal is devoid of merit and liable to be REJECTED.”

Finally, the Division Bench then concludes by holding in para 40 that, “Accordingly, the instant appeal lacks merit and is hereby REJECTED.”

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.