Allahabad High Court

BRIJESH KUMARversusSTATE OF U.P. AND ANOTHER

Decided: 24 February 2026
Bench: ABDUL SHAHID

Holding

The criminal revision is dismissed as the consent issue is factual for trial and the revisionist is not entitled to relief.

Summary

Brijesh Kumar filed a criminal revision challenging the trial court's rejection of his discharge application in a rape case (Sec. 376 IPC) filed by the complainant. He argued that the alleged sexual relationship was consensual and that a marriage under Section 125 CrPC had been solemnized, thus negating any offence. The complainant countered that the FIR included charges of rape, intimidation, and other offences, and that a charge sheet had been filed against the accused. The Court held that the issue of free consent is a factual matter to be determined at trial and that the revisionist had not approached the Court with a clean hand. Consequently, the revision was deemed to have no legal merit and was dismissed. The decision underscores that a criminal revision cannot substitute for a trial on factual issues.

Issues considered

Whether the revisionist is entitled to a discharge on the ground that the alleged sexual act was consensual.
Whether the existence of a purported marriage under Section 125 CrPC negates the offence under Section 376 IPC.
Whether the revisionist approached the Court with clean hands, affecting his entitlement to relief.

Legislation cited

Code of Criminal Procedure, 1973 — s. 125, 161, 164
Indian Penal Code — s. 120B, 313, 376, 420, 504, 506

Subjects

rape
consent
criminal revision
discharge application
Section 376 IPC
clean hands doctrine
marriage under Section 125 CrPC
fact-finding trial

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL REVISION No. - 2474 of 2025

Brijesh Kumar
.....Revisionist(s)
Versus

State of U.P. and Another
.....Opposite
Party(s)

Counsel for Revisionist(s) : Gaurav Kumar Shukla
Counsel for Opposite Party(s) : G.A., Ravindra Prakash Srivastava

Court No. - 87
HON'BLE ABDUL SHAHID, J.

1. Heard learned counsel for the revisionist, learned counsel for opposite
party no.2 and the learned AGA for the State.

2. The instant Criminal Revision has been preferred against the impugned
order dated 8.5.2025, passed by the Special Judge (MP/MLA)/Additional
Sessions Judge/Fast Track Court Ist, Basti in Session Trial No. 326 of
2025 (State Vs. Brijesh Kumar), arising out of case crime No. 408 of
2022, under Section 376, 504, 506 IPC, Police Station Purani Basti,
District Basti, whereby the discharge application of the revisionist has
been rejected by the learned trial court.

3. Learned counsel for the revisionist has vehemently submitted that his
discharge application has wrongly been rejected by the learned trial court.
There is no offence under Section 376 IPC has been made. The opposite
party no.2, who was consenting party and there were physical
relationship, if any, that has been made with duly consent of opposite
party no.2.

4. Learned counsel for the revisionist has further relied on statement of
opposite party no.2 recorded under Section 161 and 164 Cr.P.C. It is to be
specified that the statement recorded under Section 161 and 164 Cr.P.C.
are not substantive piece of evidence, which could be used at the stage of
trial for contradiction only. Learned counsel for the revisionist has further
relied on Annexure-9 filed with his own revision that opposite party no.2
has filed a petition under Section 125 Cr.P.C claiming herself to be the
CRLR No. 2474 of 2025
2

wife of revisionist/Brijesh. The opposite party no.2/complainant herself
admitted in paragraph no.1 of the application under Section 125 Cr.P.C.
that her marriage was solemnized on 2.5.2018 with the revisionist
according to Hindu rites. Hence, there is neither any offence under
Section 376 IPC is made out against the revisionist and, therefore, the
revisionist is entitled to be discharged.

5. On the other hand, learned counsel for the opposite party
no.2/complainant has submitted that the FIR was lodged under Section
376, 504, 506 , 420, 313, 120B IPC against (1) Brijesh, (2) Raj Kumar
and (3) Luxmi. She has narrated the incident that Brijesh had allured her
as well as threatened to kill her and committed rape with her. When she
made complaint to the parents of revisionist, then they had assured her
that they will solemnize her marriage with Brijesh/revisionist. Thereafter,
forcefully they got written an agreement of compromise on 18.5.2022 and
she has also narrated that to safeguard himself, the revisionist has filed a
forged case for maintenance on her behalf after framing fabricated
document in Court.

6. Learned counsel for the opposite party no.2 has further submitted that
after detail investigation, charge sheet has been filed against the
revisionist-Brijesh under Section 376, 504, 506 IPC.

7. The contention of learned counsel for the revisionist is self-
contradictory. He has relied on the application under Section 125 Cr.P.C
which is alleged to be filed by the opposite party no.2 against the
revisionist/Brijesh after showing the opposite party no.2 as wife of
Brijesh. If it is true and correct that revisionist/Brijesh has solemnized
marriage with opposite party no.2, then why he has mentioned the
opposite party no.2-Smt. Roma wife of late Basant in this memo of
revision. Both are contradictory to each other. Prima facie, it appears that
the revisionist has approached this Court not with clean hand.

8. It is settled law that who does not approach the court with clean hand,
he is not entitled for any relief. The revisionist has finally contended that
there is consent of opposite party no.2 for relationship, if any, between
revisionist and opposite party no.2, they were consensual, hence no
CRLR No. 2474 of 2025
3

offence under Section 376 IPC is made out. The question of consent that
must be free consent. It should not be obtained either in impersonation or
coercion or misrepresentation or undue influence or under any undue
pressure. The prosecution has to be prove its case beyond reasonable
doubt that offence, if any has been committed without her will and
without her consent. Whether free consent was there as submitted by the
learned counsel for the revisionist, this is a question of fact which could
be decided at the stage of trial after recording evidence of prosecution and
defence and thereafter its appreciation in accordance with law.

9. For all these reasons mentioned herein above, there is no legal force in
this criminal revision and same is liable to be dismissed.

10. The criminal revision is, accordingly, dismissed.

(Abdul Shahid,J.)
February 25, 2026
sfa/

Digitally signed by :-
SYED FAHEEM AHMAD
High Court of Judicature at Allahabad

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