Faijaan Khan v. State Of U.P. Thru. Prin. Secy. Home Lko. And Another
Case Details
Acts & Sections
Cited in this judgment
Sessions Trial No. 280 of 2024, arising out of Case Crime No. 332 of 2023, under Sections 376, 504, 506 IPC, Police Station Ikauna, District Shrawasti. Contention put-forth by learned counsel for the applicant is that an FIR was lodged by the informant/against the applicant for committing rape upon the victim on pretext of false marriage, though there is no truthfulness in the same. He has drawn attention of this Court towards Annexure no. 7, which is statement of the victim recorded under Section 164 Cr.P.C., which is quoted hereinunder: "बयान पीिडता अन्तगर्त धारा 164 सीआरपीसी..... नाम पीिडता खुशनुमा उम्र 19 वषर् िपता का नाम नवाब खां िनवािसनी खां साहब पुरवा सेमगढ़ा थाना इकौना जनपद श्रावस्ती को िववेचक प्रभारी िनरीक्षक राके श कु मार िसह द्वारा िदनांक 04/01/2024 को समय 14.00 बजे वास्ते बयान अन्तगर्त धारा 164 द०प्र०सं० अंिकत कराने हेतु प्रस्तुत िकया गया। बयान अन्तगर्त धारा 164 दं०प्र०सं० पीिड़ता खुशनुमा द्वारा स्वेच्छा सशपथ बयान िकया गया िक मेरा नाम खुशनुमा है। मेरी उम्र 19 वषर् है मैं पढ़ी िलखी नहीं हूं। मैं फै जान खां उफर् बुग्गे को काफी लम्बे समय से जानती हूँ। मैं फै जान खाँ उफर् बुग्गे मेरे ही गांव में रहता है। लगभग 07 महीने से मेरी और फै जान खाँ की अच्छी बात चीत होती है। मैं और फै जान एकदुसरे को पसंद करते हैं। मेरे और 2 A482 No. 8044 of 2025 फै जान के मध्य कई बार शारीिरक सम्बन्ध मेरी स्वेच्छा से बने । मैने जब फै जान से शादी के िलए कहा तो टालने लगा। मैंने यह बात अपने घर पर बता दी। मेरी अम्मी फै जान के घर उसके घर वालो से बात करने गई तब फै जान के घर वालों ने शादी कराने से मना कर िदया। अब फै जान भी मुझसे शादी करने से मना कर रहा है। यह बयान िबना िकसी दबाव के मेरे द्वारा अपनी स्वेच्छा से िदया गया है यही मेरा बयान है प्रमािणत िकया जाता है िक पीिड़ता द्वारा बोलने पर यह बयान स्वंय मेरे द्वारा िदनांक 04/01/2024 को िरक्त न्यायालय में अंिकत िकया गया। िजसे सुनकर व समझकर सही होना तस्दीक िकया गया है। हस्ताक्षर अंग्रेजी 04/01/2024 अिजता वमार् cj (SDFTCSM) श्रावस्ती। ०ह० खुशनुमा प्रमािणत" Referring the aforesaid, he submits that the statement of the victim before the learned trial court is itself enough to clarify that there was consensual relationship in between the applicant and the alleged victim, prior to the promise of marriage and, therefore, the ingredients of Section 376 IPC do not attract in the present matter. In support of his contention, he has placed reliance on the judgment of Hon'ble Apex Court rendered in the case of Jothiragawan Vs. State, represented by the Inspector of Police and Another passed in Special Leave Petition (Crl.) No. 6821 of 2024 and has referred Para nos. 8, 9 and 12, which are extracted as under: "8. As per the complaint and the statement given by the victim, the couple had sexual intercourse thrice. They first met in a family function, where they both exchanged their phone numbers. After a few days, the accused expressed his desire to marry the victim, when the victim categorically told him that she was studying and she would think it over, after completing her studies. Thus, started a relationship which resulted in frequent conversations and exchange of messages over the mobile phone and intermittent visits by the accused, to the house of the victim's grandmother, where she was residing: as stated by the complainant herself. On 17.04.2021, at the request of the accused, the victim accompanied him to a movie after which, she felt dizzy and they took a room in a hotel where according to the victim. there was an 'abrupt and unexpected' sexual Intercourse, under coercion against her wish. Despite protesting and crying out the accused continued the act. after which she told him that he had ruined her life. It was at this juncture, that a promise was made by the accused, putting his hand on her head, that he would marry her. From the statements recorded we do not find any inducement by the accused, with a promise of marriage, before the alleged crime, leading to the sexual Intercourse. The marriage proposal was not accepted by the victim and there is not even a statement that she succumbed to the sexual intercourse on such proposal; being made. It is the definite case put forth by the victim that the accused had acted unexpectedly and she was coerced into a sexual 3 A482 No. 8044 of 2025 intercourse despite her protests. The promise as stated, if at all, was after the intercourse.
9. The complaint proceeds that again on the pretext of discussing marriage, the accused called the victim and she willingly accompanied him to the very same hotel. It was stated that the accused made entries in the hotel register, falsifying their names. On entering the room when the victim wanted to talk about marriage. it is the specific statement that the accused refused to talk about it till they had an intercourse and thus again the victim was coerced into a sexual intercourse. At this stage also, there is no promise of marriage or any inducement thereby and the allegation was that the accused threatened her that he would not marry, if she did not have sexual intercourse with him and forcibly had such intercourse. These are mutually destructive contentions, since, if there is consent, there cannot be alleged forceful intercourse and it could only be contended that consent was obtained misrepresentation or coercion.
12. On a reading of the statements made by the victim before the Police, both the First Information Statement and that recorded later on, we are not convinced that the sexual relationship admitted by both the parties was without the consent of the victim. That they were closely related and were in a relationship is admitted by the victim. The allegation is also of threat and coercion against the victim, to have sexual intercourse with the accused, which even as per the victim's statement was repeated thrice in the same manner, when she willingly accompanied the accused to a hotel room. The victim nad also categorically stated that after the first incident and the second incident she was mentally upset, but that did not caution her from again accompanying the accused to hotel rooms." Referring the aforesaid, he submits that the case of the present applicant is squarely covered with the ratio of judgment aforesaid. He again has referred the settled law in the case of Pramod Suryabhan Pawar Vs. State of Maharashtra and another reported in [(2019) 9 SCC 608] and has referred Para no. 16, which is quoted herein-under: "16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the to convince her to engage in sexual relations, is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, maker of the promise should have had no intention of upholding 4 A482 No. 8044 of 2025 his word at e the time of giving it. The "consent" of a woman under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati³ this Court observed: (SCC pp. 682-84, paras 21 & 24) "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 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 g 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 Le. 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 uncertain date, due to reasons that are not very, clear from the evidence to keep a promise made with respect to a future 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 ald 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 her" Placing reliance on the aforesaid judgments, he submits that the consensual relationship between the parties cannot fortify the allegation of committing rape upon the victim and while committing such act, there is no mens rea involved, as to attract the ingredients of Section 376 IPC. Concluding his argument, he submits that the present criminal proceeding is against the settled proposition of law in the case of Jothiragawan (supra) and Pramod Suryabhan Pawar (supra) and, thus, the criminal proceedings against the applicant may be quashed. Learned counsel appearing for the opposite parties have failed to 5 A482 No. 8044 of 2025 contradict the aforesaid contentions. Prima facie, the matter requires consideration. Let counter affidavit be filed by learned counsel for the opposite parties within a period of two weeks. One week thereafter is allowed to learned counsel for the applicant to file rejoinder affidavit. List/put up this matter in the week commencing 27.10.2025. Till the next date of listing, further proceedings of Sessions Trial No. 280 of 2024, arising out of Case Crime No. 332 of 2023, under Sections 376, 504, 506 IPC, Police Station Ikauna, District Shrawasti, shall remain stayed. September 23, 2025 kkv/ (Shree Prakash Singh,J.)
Sessions Trial No. 280 of 2024, arising out of Case Crime No. 332 of 2023, under Sections 376, 504, 506 IPC, Police Station Ikauna, District Shrawasti. Contention put-forth by learned counsel for the applicant is that an FIR was lodged by the informant/against the applicant for committing rape upon the victim on pretext of false marriage, though there is no truthfulness in the same. He has drawn attention of this Court towards Annexure no. 7, which is statement of the victim recorded under Section 164 Cr.P.C., which is quoted hereinunder: "बयान पीिडता अन्तगर्त धारा 164 सीआरपीसी..... नाम पीिडता खुशनुमा उम्र 19 वषर् िपता का नाम नवाब खां िनवािसनी खां साहब पुरवा सेमगढ़ा थाना इकौना जनपद श्रावस्ती को िववेचक प्रभारी िनरीक्षक राके श कु मार िसह द्वारा िदनांक 04/01/2024 को समय 14.00 बजे वास्ते बयान अन्तगर्त धारा 164 द०प्र०सं० अंिकत कराने हेतु प्रस्तुत िकया गया। बयान अन्तगर्त धारा 164 दं०प्र०सं० पीिड़ता खुशनुमा द्वारा स्वेच्छा सशपथ बयान िकया गया िक मेरा नाम खुशनुमा है। मेरी उम्र 19 वषर् है मैं पढ़ी िलखी नहीं हूं। मैं फै जान खां उफर् बुग्गे को काफी लम्बे समय से जानती हूँ। मैं फै जान खाँ उफर् बुग्गे मेरे ही गांव में रहता है। लगभग 07 महीने से मेरी और फै जान खाँ की अच्छी बात चीत होती है। मैं और फै जान एकदुसरे को पसंद करते हैं। मेरे और 2 A482 No. 8044 of 2025 फै जान के मध्य कई बार शारीिरक सम्बन्ध मेरी स्वेच्छा से बने । मैने जब फै जान से शादी के िलए कहा तो टालने लगा। मैंने यह बात अपने घर पर बता दी। मेरी अम्मी फै जान के घर उसके घर वालो से बात करने गई तब फै जान के घर वालों ने शादी कराने से मना कर िदया। अब फै जान भी मुझसे शादी करने से मना कर रहा है। यह बयान िबना िकसी दबाव के मेरे द्वारा अपनी स्वेच्छा से िदया गया है यही मेरा बयान है प्रमािणत िकया जाता है िक पीिड़ता द्वारा बोलने पर यह बयान स्वंय मेरे द्वारा िदनांक 04/01/2024 को िरक्त न्यायालय में अंिकत िकया गया। िजसे सुनकर व समझकर सही होना तस्दीक िकया गया है। हस्ताक्षर अंग्रेजी 04/01/2024 अिजता वमार् cj (SDFTCSM) श्रावस्ती। ०ह० खुशनुमा प्रमािणत" Referring the aforesaid, he submits that the statement of the victim before the learned trial court is itself enough to clarify that there was consensual relationship in between the applicant and the alleged victim, prior to the promise of marriage and, therefore, the ingredients of Section 376 IPC do not attract in the present matter. In support of his contention, he has placed reliance on the judgment of Hon'ble Apex Court rendered in the case of Jothiragawan Vs. State, represented by the Inspector of Police and Another passed in Special Leave Petition (Crl.) No. 6821 of 2024 and has referred Para nos. 8, 9 and 12, which are extracted as under: "8. As per the complaint and the statement given by the victim, the couple had sexual intercourse thrice. They first met in a family function, where they both exchanged their phone numbers. After a few days, the accused expressed his desire to marry the victim, when the victim categorically told him that she was studying and she would think it over, after completing her studies. Thus, started a relationship which resulted in frequent conversations and exchange of messages over the mobile phone and intermittent visits by the accused, to the house of the victim's grandmother, where she was residing: as stated by the complainant herself. On 17.04.2021, at the request of the accused, the victim accompanied him to a movie after which, she felt dizzy and they took a room in a hotel where according to the victim. there was an 'abrupt and unexpected' sexual Intercourse, under coercion against her wish. Despite protesting and crying out the accused continued the act. after which she told him that he had ruined her life. It was at this juncture, that a promise was made by the accused, putting his hand on her head, that he would marry her. From the statements recorded we do not find any inducement by the accused, with a promise of marriage, before the alleged crime, leading to the sexual Intercourse. The marriage proposal was not accepted by the victim and there is not even a statement that she succumbed to the sexual intercourse on such proposal; being made. It is the definite case put forth by the victim that the accused had acted unexpectedly and she was coerced into a sexual 3 A482 No. 8044 of 2025 intercourse despite her protests. The promise as stated, if at all, was after the intercourse.
9. The complaint proceeds that again on the pretext of discussing marriage, the accused called the victim and she willingly accompanied him to the very same hotel. It was stated that the accused made entries in the hotel register, falsifying their names. On entering the room when the victim wanted to talk about marriage. it is the specific statement that the accused refused to talk about it till they had an intercourse and thus again the victim was coerced into a sexual intercourse. At this stage also, there is no promise of marriage or any inducement thereby and the allegation was that the accused threatened her that he would not marry, if she did not have sexual intercourse with him and forcibly had such intercourse. These are mutually destructive contentions, since, if there is consent, there cannot be alleged forceful intercourse and it could only be contended that consent was obtained misrepresentation or coercion.
12. On a reading of the statements made by the victim before the Police, both the First Information Statement and that recorded later on, we are not convinced that the sexual relationship admitted by both the parties was without the consent of the victim. That they were closely related and were in a relationship is admitted by the victim. The allegation is also of threat and coercion against the victim, to have sexual intercourse with the accused, which even as per the victim's statement was repeated thrice in the same manner, when she willingly accompanied the accused to a hotel room. The victim nad also categorically stated that after the first incident and the second incident she was mentally upset, but that did not caution her from again accompanying the accused to hotel rooms." Referring the aforesaid, he submits that the case of the present applicant is squarely covered with the ratio of judgment aforesaid. He again has referred the settled law in the case of Pramod Suryabhan Pawar Vs. State of Maharashtra and another reported in [(2019) 9 SCC 608] and has referred Para no. 16, which is quoted herein-under: "16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the to convince her to engage in sexual relations, is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, maker of the promise should have had no intention of upholding 4 A482 No. 8044 of 2025 his word at e the time of giving it. The "consent" of a woman under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati³ this Court observed: (SCC pp. 682-84, paras 21 & 24) "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 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 g 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 Le. 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 uncertain date, due to reasons that are not very, clear from the evidence to keep a promise made with respect to a future 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 ald 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 her" Placing reliance on the aforesaid judgments, he submits that the consensual relationship between the parties cannot fortify the allegation of committing rape upon the victim and while committing such act, there is no mens rea involved, as to attract the ingredients of Section 376 IPC. Concluding his argument, he submits that the present criminal proceeding is against the settled proposition of law in the case of Jothiragawan (supra) and Pramod Suryabhan Pawar (supra) and, thus, the criminal proceedings against the applicant may be quashed. Learned counsel appearing for the opposite parties have failed to 5 A482 No. 8044 of 2025 contradict the aforesaid contentions. Prima facie, the matter requires consideration. Let counter affidavit be filed by learned counsel for the opposite parties within a period of two weeks. One week thereafter is allowed to learned counsel for the applicant to file rejoinder affidavit. List/put up this matter in the week commencing 27.10.2025. Till the next date of listing, further proceedings of Sessions Trial No. 280 of 2024, arising out of Case Crime No. 332 of 2023, under Sections 376, 504, 506 IPC, Police Station Ikauna, District Shrawasti, shall remain stayed. September 23, 2025 kkv/ (Shree Prakash Singh,J.)