1 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.

25093/23

HIGH COURT OF MADHYA PRADESH

BENCH AT GWALIOR

:SINGLE BENCH:
{JUSTICE ANAND PATHAK, J.}

MISC.CRIMINAL CASE NO.51674/2022

Major Amit Pathak

Vs.
State of Madhya Pradesh & Anr.

CRIMINAL REVISION NO.2594/2022

Sumit Pathak
Vs.
State of Madhya Pradesh & Anr.

CRIMINAL REVISION NO.2595/2022

Sarvesh Chandra Pathak & Anr.

Vs.
State of Madhya Pradesh & Anr.

MISC. CRIMINAL CASE NO.25093/2023

Major Amit Pathak

Vs.
State of Madhya Pradesh & Anr.
------------------------------------------------------------------------------------------
Shri Harshit Sharma and Shri Avinash Chaturvedi – Advocates for
the petitioners.
Shri Ravindra Singh Kushwah – Dy. Advocate General for the
respondent/State.
Shri R.K. Sharma – Senior Advocate with Shri Mahendra
Chaudhary and Shri Abhijeet Singh Tomar – Advocates for respondent
No.2/complainant.
------------------------------------------------------------------------------------------
2 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

ORDER
(Delivered on 1st day of July, 2024)

1. Regard being had to the similitude of the controversy as all cases

originate from the same cause of action, all petitions were heard

analogously and decided by this common order. For convenience's

sake, facts as narrated in M.Cr.C.No.51674/2022 are taken into

consideration.

2. Petitioner (of M.Cr.C.No.51674/2022) is husband of respondent

No.2 who happens to be his wife and complainant of the case and

has filed the FIR vide crime No.38/2021 at Police Station Mahila

Thana Padav District Gwalior for the offence punishable under

Sections 498-A, 377, 354, 506, 34 of IPC and Section 4 of the

Dowry Prohibition Act, 1961 (hereinafter referred to as “the DP

Act”). Through this petition under Section 482 of Cr.P.C. petitioner

sought following reliefs:

“a. That this Hon'ble Court may kindly be pleased to

allow this quashing petition and the F.I.R. bearing
Crime No.38/2021 lodged at P.S. Mahila Thana,
District Gwalior, Madhya Pradesh u/s 498-A, 377, 354,
506, 34 of Indian Penal Code 1860 and Section 4 of
Dowry Prohibition Act, 1961 and all other
consequential proceedings arising therewith against
the present petitioner, may kindly be quashed and set
-aside and the entire proceedings so initiated &
3 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

pending against the petitioner in relation to instant

matter, may kindly be dropped.”

3. Complainant/respondent No.2 filed the complaint against the

petitioner and other co-accused (who have challenged the

proceedings by way of separate criminal revisions) that after

marriage being solemnized with the present petitioner on 29-04-

2018 according to Hindu Rites and Rituals at Bhind, after some

time, petitioner - Major Amit Pathak/husband and other family

members viz. Sumit Pathak (brother-in-law), Sarvesh Chandra

Pathak (father-in-law) and Smt. Kusumlata Pathak (mother-in-law)

raised dowry demand for Fortuner Car and financial assistance for

construction of house. She was subjected to harassment time and

again and meanwhile when she conceived then she was forced to

abort. Not only that, husband of complainant who is an Army

Officer and posted as Major at Manipur, since

inception/honeymoon, forced her for unnatural anal and oral sex.

4. Her allegations are that after marriage on 29-04-2018, when they

went to Manali for honeymoon, there her husband committed

unnatural anal and oral sex. Thereafter, this act was repeated many a

times in married life. When she objected, then she was beaten up by

her husband. Her father-in-law also tried to gain undue proximity

4 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

which she resisted. On the basis of such allegations, FIR was

registered and investigation was carried out. Except present

petitioner – Major Amit Pathak, all petitioners were granted benefit

of anticipatory bail. Petitioner -Amit Pathak/husband of complainant

was given benefit of bail by the Apex Court. Medical examination

of complainant was carried out and her anal and vaginal swabs

along with her clothes were seized and referred for FSL report.

Thereafter, charge-sheet was filed before the trial Court and charges

were framed.

5. Petitioner has challenged registration of FIR as well as

consequential proceedings including charge-sheet whereas co-

accused Sumit Pathak has filed Cr.R.No.2594/2022 and his parents

have filed Cr.R.No.2595/2022 by which framing of charge as well

as all other consequential proceedings arising out of FIR registered

at crime No.38/2021 at Police Station Mahila Thana Padav District

Gwalior for the offence under Sections 498-A, 377, 354, 506, 34 of

IPC and Section 4 of the DP Act and charge-sheet have been

challenged. Those revisions are in fact revision petitions under

Section 397, 401 of Cr.P.C. as well as petitions under Section 482 of

Cr.P.C.

6. Another petition was preferred by the present petitioner -Major

5 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

Amit Pathak bearing M.Cr.C.No.25093/2023 in which order of trial

Court dated 17-05-2023 was challenged wherein direction was

given to the petitioner to tender DNA sample for DNA Profiling.

However, crux of the matter is challenge to the FIR and

consequential proceedings. Therefore, all petitions were

analogously heard and decided by this common order.

7. It is the submission of learned counsel appearing for the petitioner

that petitioner is an Army Officer and at present posted as Major at

Manipur. He has been posted at different field postings at Faridkot,

Jammu & Kashmir, Nagaland from time to time and is a sincere and

reputed army officer. Marriage of petitioner and respondent No.2 -

Ms. Pooja Pathak Sharma was solemnized on 29-04-2018 at Bhind.

For some time both lived together at Etawah and thereafter at

different places of posting of petitioner as per Army Rules in this

regard. According to learned counsel, respondent No.2 was mentally

unstable and underwent treatment. She used to fight with petitioner

on any flimsy pretext, abused him and whenever she visited at

front posting at Nagaland and Manipur she ridiculed him in front of

his officers/peers and levelled various allegations over him.

8. On 06-08-2020 couple resided for last time together in Etawah and

when her mental ailment and disposition went beyond tolerance

6 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

then an application was moved by the petitioner on 17-08-2020

before Superintendent of Police, Etawah regarding mental ailment

of his wife and possible consequences. Said document finds place

as Annexure A/6 (page 222) in Cr.R.No.2594/2022.

9. On 25-09-2020 petitioner filed divorce case against his wife

-respondent No.2 herein. Copy of the said divorce petition is filed

as Annexure A/2 with the petition. In the said petition, petitioner has

referred in detail about the temperament and mental ailment of

respondent No.2 and her conduct from time to time. He referred the

fact that respondent No.2 used to fight with him for no reasons

and was very reluctant to live with his parents. Since he is an Army

Officer, therefore, at times he is posted at front/border where he

cannot keep his family then in that condition she used to refuse to

live with his family members at Etawah and used to live at Bhind

with her parents. Without any information she used to come to the

field posting at Faridkot and Nagaland to create ruckus there. Her

conduct constantly caused mental harassment to the petitioner.

10. Learned counsel for the petitioner also referred the fact that

petitioner made a complaint to the officers at Jalukie Police Station,

Nagaland also and raised his grievance in the said letter about the

acts/temperaments of his wife. Therefore, it is not a case where

7 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

petitioner harassed respondent No.2 but it is a case where

respondent No.2 constantly harassed the petitioner. Therefore,

compelled by the circumstances, petitioner filed divorce petition on

25-09-2020 before Family Court, Etawah (U.P.) raising all

grievances. In the said proceedings, notice to respondent No.2 was

issued and respondent No.2 was called time and again on 03-10-

2020, 05-10-2020, 06-10-2020 and 09-10-2020 for mediation but

she did not turn up. On the other hand, she was harassing petitioner

while visiting at places of his postings, therefore, petitioner wrote a

grievance letter dated 11-10-2020 to Jalukie Police Station,

Nagaland regarding suicidal tendency and inappropriate stay of

respondent No.2 at his accommodation in 36 Assam Rifles at

Nagaland. It appears that respondent No.2 did not appear in Court to

participate in divorce proceedings but returned back on 12-10-2020

from Nagaland to her maternal home at Bhind and as an

afterthought complaint was filed on which FIR at crime No.38/2021

at Police Station Mahila Thana Padav District Gwalior for the

offence under Sections 498-A, 377, 354, 506, 34 of IPC and Section

4 of the DP Act was registered. It is interesting to note that written

complaint was filed on dated 24-01-2021.

11. Therefore, it is the submission of learned counsel for the petitioner

8 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

that registration of FIR on 24-01-2021 is an afterthought, just to

exert pressure over petitioner and his family. It is used as

counterblast of divorce petition filed by petitioner on 25-09-2020.

12. As submitted, without going into the nature of allegations and

without undertaking any preliminary enquiry as mandated by the

Apex Court in the case of Lalita Kumari Vs. Government of U.P.

and others, (2014) 2 SCC 1 directly case was registered. Said

approach of police is arbitrary and illegal and shows the intention.

Interestingly, no Pen Drive and CD have been recovered in the case

whereas allegations of complainant was such that petitioner used to

record such acts when allegedly committed with her. It is a case of

delayed FIR because petitioner allegedly subjected respondent No.2

for unnatural sex since inception of marriage on 29-04-2018,

therefore, complaint ought to had been filed at the earliest in April-

May 2018 or afterwards, but marriage was solemnized on 29-04-

2018 and FIR was registered on 24-01-2021. Therefore, FIR is

delayed by 2 years and 9 months. That too, when divorce petition

has been filed by petitioner on 25-09-2020.

13. Even Exhibits A,B and C regarding medical report indicate false

nature of evidence. In fact, medical opinion belies the allegations.

No injury was found over the person of complainant. It is difficult to

9 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

keep the semen and sperms intact after 5 months because in those

medical papers it has been specifically mentioned that petitioner and

respondent No.2 are living separately for last 5 months. Therefore,

after such long delay, samples were taken for FSL report which was

a futile exercise. Surprisingly, FSL report prepared in such manner

to show involvement of petitioner but it is common knowledge that

those semen/sperm and their existence are alive only for certain

period, usually 3 days and not beyond that. It is highly improbable

that anal swab/vaginal swab indicates presence of semen/sperm

after five months. In this regard different Forensic Science Journals

and Literature connected to it were referred.

14. Learned counsel for the petitioner also referred the judgment of

Apex Court in the case of Navtej Singh Johar and Others Vs.

Union of India Through Secretary, Ministry of Law and Justice,

(2018) 10 SCC 1 and submits that after amendment in Section 375

of IPC in 2013 by Amendment Act, it has been clarified that by

impact of subsequent repeal, no offence is made out regarding

marital rape due to Exception No.2 as contained in Section 375 of

IPC. He relied upon the judgments of Coordinate Bench of this

Court in the case of Umang Singhar Vs. State of Madhya Pradesh

through Station House Officer and another, 2023 SCC OnLine

10 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

MP 3221 and Manish Sahu Vs. State of Madhya Pradesh & Anr.

in M.Cr.C.No.8388/2023 to submit that no offence is made out if

husband and wife shares carnal pleasure, therefore, on this count

also, case of petitioner deserves interference. In support of his

submissions, learned counsel for the petitioner placed reliance on

the judgments of Apex Court in the case of T. Barai Vs. Henry Ah

Hoe & Anr. (1983) SCC (Cri.) 143 and Enforcement Directorate,

Government of India Vs. Kapil Wadhwan & Anr. 2023 LiveLaw

(SC) 249.

15. Learned counsel for the respondent/State opposed the submissions

advanced by learned counsel for the petitioner and according to him

trial shall unfold the truth. Petitioners are facing trial under Section

377 and 354 of IPC and it can only be decided by evidence.

16. Learned senior counsel for respondent No.2/complainant

elaborately argued the matter and submits that looking to the nature

of dispute, trial is mandatory. Petitioners were responsible for

abortion of respondent No.2 and they consistently asked for

bringing Fortuner car and raised dowry demand time and again.

Respondent No.2 was subjected to unnatural sex at the hands of her

husband petitioner since her marriage. Provisions of Section 375 of

IPC is different than the provisions of Section 377 of IPC.

11 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

17. Through various documents, learned senior counsel appearing for

respondent No.2 tried to suggest that petitioner raised dowry

demand, therefore, he is liable for said punishment which Court

deems fit. He tried to distinguish Section 375 vis-a-vis Section 377

of IPC and prayed for dismissal of petition. To bolster his

submissions, learned senior counsel relied upon the judgment of

Apex Court in the case of Tilly Gifford Vs. Michael Floyd Eshwar

& Anr. (2018) 2 SCC (Cri.) 630, Central Bureau of Investigation

Vs. Arvind Khanna, (2020) 1 SCC (Cri.) 94, Dineshbhai

Chandubhai Patel Vs. State of Gujarat & Ors. 2018 (2) JLJ 373

(SC), Saranya Vs. Bharathi & Anr. 2022 (2) MPLJ (Cri.) 26

(SC), Ramveer Upadhyay & Anr. Vs. State of U.P. & Anr. 2023

(1) MPLJ (Cri.) 200 (SC), Pratibha Vs. Rameshwari Devi &

Ors. (2008) 1 SCC (Cri.) 399 and Balkrishna Devda & Ors. Vs.

State of M.P. & Anr. 2022 (2) MPLJ (Cri.) 402.

18. Heard learned counsel for the parties at length and perused the

documents/charge-sheet as well as synopsis submitted by the

counsel for the parties.

19. For appreciating the controversy in better perspective, narration of

following dates and events are important:

Dates Events
12 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

29/4/2018 Marriage took place between petitioner - Major Amit

Pathak and respondent No.2 - Mrs. Pooja Pathak

Sharma.
01/08/20 Letter of Commanding Officer of petitioner - Major

Amit Pathak to vacate married accommodation at

earliest.
06/08/20 Couple resided for the last time together in Etawah
17/08/2020 An application was sent to the Superintendent of

Police, Etawah regarding mental ailment of Mrs. Pooja

Pathak.
22/08/2020 Mrs. Pooja Pathak all alone went to Jalukie, Nagaland

where Major Amit Pathak was posted without any

intimation
25/09/2020 Petitioner - major Amit Pathak filed divorce case

against Mrs. Pooja Pathak Sharma in Etawah, Uttar

Pradesh.
03/10/20 Notice for mediation in divorce case was served to

Mrs. Pooja Pathak Sharma through WhatsApp to

appear on 05-10-2020 at Family Court Etawah.

05/10/20 Again, intimation for mediation in divorce case was

given to Mrs. Pooja Pathak Sharma through E-mail to

appear on 09.10.2020 at Family Court Etawah

05/10/20 Again, intimation for mediation in divorce case was

served to Mrs. Pooja Pathak Sharma through SMS to

13 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

appear on 09.10.2020 at Family Court Etawah.

06/10/20 Again, intimation for mediation in divorce case was

served to Mrs. Pooja Pathak Sharma through SMS to

appear on 09.10.2020 at Family Court Etawah.

09/10/20 Mrs. Pooja Pathak Sharma did not appear for

mediation, which ultimately failed.

11/12/20 Grievance letter was tendered by petitioner - major

Amit Pathak to Jalukie Police Station regarding

suicidal tendency and inappropriate stay of Mrs. Pooja

Pathak Sharma at accommodation area of 36 Assam

Rifles.
12/12/20 Mrs. Pooja Pathak Sharma came back to her maternal

home at Bhind.
24/01/2021 FIR bearing Crime No. 38/2021 has been lodged at

P.S. Mahila Thana, Gwalior (M.P.) on the basis of

written complaint tendered by Mrs. Pooja Pathak

Sharma for the offences u/s. 498A, 377, 354, 506 of

IPC 1860 and section 4 of the DP Act, 1961 against

the petitioners - Major Amit Pathak (husband), Sumit

Pathak (Brother-in-law), Sarvesh Chandra Pathak

(Father-in-law) and Kusumlata Pathak (Mother-in-

law)
24/01/2021 Statement under Section 161 of Cr.P.C. of Pooja
14 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

Pathak Sharma was recorded.

24/01/2021 Statement under Section 161 of Cr.P.C. of Rajesh

Sharma (father of Pooja Sharma) was recorded.

24/01/2021 Statement under Section 61 of Lokesh Tiwari (Jijaji of

Pooja Pathak) was recorded.

24/01/2021 Statement under Section 161 of Cr.P.C. Raj Kumar

Gupta (friend of Pooja Pathak's father) was recorded.

25/01/2021 Medical examination of Mrs. Pooja Pathak Sharma

took place which is inconclusive and bears no injuries

as well as she admits that from last five months, she is

living away from her husband.

25/01/2021 Statement under Section 164 of Cr.P.C. of Pooja

Pathak Sharma was recorded.

26/01/2021 Statement under Section 161 of Cr.P.C. of Puneet

Sharma (brother of Pooja Pathak) was recorded.

26/01/2021 Statement under Section 161 of Cr.P.C. of Neetu

Pathak (friend of Pooja Pathak) was recorded.

27/01/2021 Statement under Section 161 of Cr.P.C. of R.K. Tiwari

(friend of Pooja Pathak's father) was recorded.

27/01/2021 Statement under Section 161 of Cr.P.C. of Narendra

Pachori (friend of Pooja Pathak's father) was recorded.

02/02/21 Statement under Section 161 of Cr.P.C. of Priyanka

Tiwari (sister of Pooja Pathak) was recorded.

06/04/21 Transfer Petition (Civil) No. 888/2021 preferred on

06.04.2021 before Hon'ble Apex Court to transfer

15 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

divorce case filed by the petitioner - major Amit

Pathak from Etawah to Gwalior.

07/05/21 Petitioner - Major Amit Pathak got interim relief of

stay on arrest by Hon'ble Apex Court in SLP (Crl.) No.

3594/2021.
22/06/2021 Respondent No.2/complainant filed application

Section 12 of Protection of Women from Domestic

Violence Act, 2005 (hereinafter referred to as “the Act

of 2005”) before Court in Gwalior against petitioner -

Major Amit Pathak (husband), Sarvesh Chandra

Pathak (Father-in-law) and Kusumlata Pathak

(Mother-in-law) but no allegation has been made

against petitioner - Sumit Pathak (Brother-in-law).

20/06/2022 Charges were framed against petitioners Sumit Pathak

and Smt. Kusumlata Pathak for offence under Sections

498-A, 506-II of IPC and Section 4 of the DP Act and

against Sarvesh Chandra Pathak charges were framed

under Sections 498-A, 354, 506 -II of IPC and Section

4 of the DP Act.
03/11/22 Petitioner - Major Amit Pathak got relief of permanent

bail by Hon'ble Apex Court in SLP (Crl.) No.

3594/2021.
08/12/22 Divorce case was transferred from Etawah to Gwalior
16 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

by order of the Hon'ble Apex Court.

09/02/23 Application under Section 9 of the Hindu Marriage

Act, 1955 (hereinafter referred to as “the Act of

1955”) was filed by Mrs. Pooja Pathak Sharma for

restitution of conjugal rights before Family Court

Gwalior which is registered at RCS HM No. 188/2023

15/09/2023 In-camera mediation proceedings were held by this

Court which ultimately failed and even before the

Mediator the said proceedings failed as the report is

attached in CRR No. 2594/2022.

Allegations against the petitioner/husband.

20. From perusal of table indicating dates and events it appears that

marriage was solemnized on 29-04-2018 and contents of written

complaint on which FIR was registered indicates that after marriage

when both went to Manali, purportedly for honeymoon, then

petitioner committed offence of unnatural sex for the first time

with respondent No.2. Therefore, as alleged offence of unnatural

sex was committed around April -May, 2018 for the first time

whereas the complaint was made for the first time on 24-01-2021

on which FIR was registered. Therefore, after commission of

offence for the first time, respondent No.2 took 2 years and 9

months to lodge FIR regarding commission of offence under

17 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

Section 377 of IPC against her husband. During this period, she

went many a times to her parents' home at Bhind but never told

anyone about such incident.

21. Not only this, contents of FIR indicates that petitioner allegedly

committed unnatural sex with respondent No.2 many a times. When

respondent No.2 did not accept the alleged act of petitioner then she

could have resisted earlier when she had made complaint against the

petitioner to the senior officers of petitioner after marriage about his

other conduct of not keeping her at field posting and before lodging

of FIR. Many instances have been narrated by the petitioner in his

application for divorce as well as demonstrated through documents

filed with the petition/revisions which are part and parcel of the

record. Therefore, it is difficult to assume that a lady who is so

proactive about her disposition, never raised her voice against such

act of unnatural sex either wither senior officers of petitioner or

when counseling undertaken between the parties by the senior

officers of the petitioner. Therefore, allegations are to be tested with

caution.

22. Although delay is not always the vital ground on which complaint

can be discarded but once such inordinate delay occurred then Court

has to be circumspect about the allegations and its nature as

18 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

surfaced in the evidence, so that innocent people may not suffer.

23. In the present case no legally admissible evidence to substantiate

the allegations which were levelled in respect of anal and oral sex

exists. Even the medical examination of respondent No.2 reveals

that she was not living with her husband for more than 5 months

and even the examining doctor during her medical examination at

multiple instances noted this fact which assumes importance while

going through the FSL report of seized articles of respondent No.2.

24. In medical examination, no injuries were found over her

person/private parts. Interestingly male semen/sperms were found in

vaginal and anal swab of complainant and therefore, prosecution

tried to raise submissions that petitioner committed unnatural sex

with his wife i.e. respondent No.2, his semen is found in vaginal and

anal swab as well as over her clothes, but said submission is

detrimental in the present case. Petitioner and respondent No.2 got

separated five months back and in charge-sheet, no evidence of their

reunion is referred. Therefore, it is highly improbable that after 5

months semen/sperms of petitioner found in anal and vaginal swab.

25. In this regard one research work is submitted by counsel for the

petitioner in Forensic Science International, 19 (1982) 135 -154 by

G.M. Willott and J.E. Allard gives an existing study over the period
19 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

of existence of sperm in rectal and anal swabs:

“SPERMATOZOA - THEIR PERSISTENCE AFTER SEXUAL

INTERCOURSE
G. M. WILLOTT and J. E. ALLARD

The Metropolitan Police Forensic Science Laboratory, 109 Lambeth Road,

London SEI 7LP (Gt. Britain)

(Received March 11, 1981; accepted July 6, 1981)

Summary:
The longest times after intercourse that spermatozoa have been
found on a total of 2410 casework swabs are as follows:
internal vaginal swabs : 120 hours
external vaginal swabs : 120 hours
rectal swabs : 65 hours
anal swabs : 46 hours
oral swabs : 6 hours (9 hours on lips).
These results can be of use when attempting to estimate the time
of the last act of intercourse.

Introduction:
Data collection has become an important part of a forensic scientist's
work so that he can assess the value of each test and indicate the
significance of results when giving evidence in a court of law. In
sexual assault cases, the amount of information available to the
forensic scientist has increased con- siderably in the last few years.
There have been several reports giving details of the length of time
after intercourse that spermatozoa can be found. How- ever, the results
have usually been based on small numbers or from volunteer donors
20 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

rather than actual cases. There is a particular shortage of published

information on the persistence of semen following anal and oral
intercourse.
This paper is intended to clarify the situation by giving the
results of examination for spermatozoa on vaginal, anal and oral swabs
taken at known times after alleged intercourse in sexual assault cases
submitted to the Metropolitan Police Forensic Science Laboratory
during the last five years. Murder cases have been excluded; the data
presented refer to living victims.

Materials and methods:

The swabs used were plain cotton wool swabs. The routine
examination for semen is to cut off with a new scalpel blade ¼ of the
cotton wool tip and put it into 1 ml distilled water. After agitation to
assist extraction of the semen into the water, the cotton wool is
removed from the tube and one drop of the extract is placed on a
microscope slide and allowed to dry. It is then heat fixed and stained
with haematoxylin and eosin. A further sample of the extract is used to
measure the acid phosphatase activity as described by Davies [1]. The
remaining ¾ of the swab may be used for grouping any semen present
or for the identification of other body fluids.
The density of spermatozoa present on each microscope slide has been
estimated using the classification described by Kind [2] but with an
extra category when only a very few spermatozoa could be found:
++++ many in every field.
+++ many or some in most fields.
++ some in some fields, easy to find.
+ hard to find.
Few very small number on the whole slide.
21 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

0 none.
In addition, the presence of tails on any of the spermatozoa is
recorded. The results from all tests carried out on swabs in sexual
assault cases are recorded on an ICL 1904 computer for quick retrieval
and reference.

Results and discussion:

Internal vaginal swabs
The number of swabs which fall into each category of sperm density is
shown in Table 1 and Figs. 15. The total number of swabs on which
spermatozoa were found is illustrated in Fig. 6 together with the swabs
on which at least one spermatozoon had a tail. The longest time
recorded for spermatozoa is 120 hours and for those with tails, the
record is 26 hours. Spermatozoa were found on a cervical swab taken
179 hours (74 days) after
TABLE 1
Density of spermatozoa on 1332 internal
vaginal swabs
---------------------------------------------------------------------------------------------
Sperm density* No. of swabs %
----------------------------------------------------------------------------------------------
++++ 78 6
+++ 157 12
++ 229 17
+ 182 14
few 112 8
0 574 43
----------------------------------------------------------------------------------------------
Total 1332
----------------------------------------------------------------------------------------------
*For explanation of symbols see Materials and methods.
22 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

Fig. 1. Internal vaginal swabs. Occurrence of swabs with ++++ spermatozoa compared
with total number of swabs examined.

intercourse. The numbers examined are quite small for the longer
times after intercourse, so that, although they provide a very useful
guide, they may not represent the longest time spermatozoa can
persist.
The degradation of spermatozoa in the female reproductive tract
results partially from phagocytosis by neutrophilic leucocytes and
occasionally by mononuclear cells [3]. Phagocytosis of spermatozoa
occurs in both the vaginal and cervical fluids, all components (head,
tail and principal piece) having been seen in the cytoplasm of
neutrophils by Moyer et al. [3].
Previous reports on the persistence of spermatozoa in the vagina
show considerable variation and are shown in Table 2 [4-15].
23 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

The usefulness of the concentration of spermatozoa on vaginal

swabs as a guide to the likelihood of grouping success has been
examined previously along with the variation in the chances of ABO
grouping compared with the blood group of the swab donor [16,
17].

Fig. 2. Internal vaginal swabs. Occurrence of swabs with +++ spermatozoa compared
with total number of swabs examined.

External vaginal swabs:

This group includes swabs from the labia, vulva and perineum. The totals
for each category in Figs. 7-11 are shown in Table 3.
The percentage of external swabs stained with semen is low compared
with the frequency for internal vaginal swabs (Tables 1 and 3, Figs. 6 and
12). It is common practice when the internal swab bears semen for the
external swab not to be examined. The external swab is therefore more
likely to be examined when the internal is negative and this could account
for the lower percentage of external swabs showing spermatozoa.
Figure 12 gives the total number of external vaginal swabs on which
spermatozoa were found. It also shows the longest time after intercourse
that spermatozoa and sperm with tails have been found is 120 hours and
24 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

16 hours respectively, which is very similar to the times of 120 hours and
26 hours for internal vaginal swabs.

Fig. 3. Internal vaginal swaba. Occurrence of swabs with ++ spermatozoa compared

with total number of swabs examined.

Anal and rectal swabs:

There appears to be little published information on the persistence
of spermatozoa in the rectum and anus. Sharpe [6] has found
spermatozoa in the rectum up to 24 hours after anal intercourse.
Enos and Beyer [18] reported that sperm can be present for up to 20
hours after an offence of buggery.
Data from swabs submitted to the Metropolitan Police Forensic
Science Laboratory (Figs. 1322) show that spermatozoa can persist
for over two days. Histograms for the ++++ category have not been
prepared because only one such anal swab and two rectal swabs
were recorded. These were taken 3, 4 and 6 hours respectively after
anal intercourse. The totals for anal and rectal swabs are listed in
25 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

Table 4.
Figures 17 and 22 indicate that it is comparatively rare to find tails
on spermatozoa on anal and rectal swabs, especially after more than
6 hours, but sperm heads were found up to 46 hours after on an anal
swab and 65 hours on one rectal swab.

26. Perusal of report indicates that duration of semen in anal or vaginal

swabs is not more than 3 days at best. One study conducted and

published in LGC Forensics about investigation in sexual offences

also reveals that semen at anal swab are usually found upto 3 days

and sample can be taken upto 3 days. Normally, semen at anal swab

should be found within 24 hours after intercourse. Following

conclusions can be drawn from the Journal LGC Forensics about

vaginal swab and anal swab:

“Persistence of semen following vaginal intercourse

Semen on vaginal swabs following full internal
ejaculation:
* Should be found within 24 hours after intercourse
* May be found up to 3 days
* Occasionally found up to 7 days
* Can persist longer in cervix
* Samples taken up to 7 days
Depends factors such as degradation, activity
accelerates vaginal drainage, washing, injuries etc

Persistence of semen following anal intercourse

26 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

Semen on anal swabs following full internal

ejaculation:
* Should be found within 24 hours after intercourse
* Occasionally found up to 3 days
* Samples taken up to 3 days
Depends on factors such as degradation, activity,
injuries, defecation
Also want vaginal swabs to address anal intercourse.”

27. Therefore, it is highly surprising that after 5 months samples have

been collected by the police and very surprising semen was found

over her penty/vaginal swab/anal swab. Said Journal further

elaborates as under:

“Time Since Intercourse

The interval between intercourse taking place and when
the evidence is seized eg time of medical examination.
* The greater the time delay the less likely you are to
find semen
* Factors that affect TSI findings:
-Anything that accelerates drainage
-Washing-external swabs, clothing
-Natural degradation
* Effectiveness of sampling plays a role
Time Since Intercourse
* we need to consider the persistence of seminal
components:
acid phosphatase
-Vagina-2-3 days
27 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

-Anus-1 day
-Mouth - less than 1 day
-Clothing until washed
spermatozoa
-Vagina up to 7 days
-Anus - up to 3 days
-Mouth up to 24 hours
-Clothing - indefinitely?? Washing may not
remove all sperm.”

28. Counsel for the petitioner also placed abstract from the Journal of

Forensic Sciences Edition 2016 in which research paper on

Criminalistics was prepared by David G. Casey Ph.D. Katarina

Domijan, Ph.D. Sarah MacNeill, B.Sc. Damien Rizet, M.Sc. Declan

O'Connell, B.Sc. and Jennifer Ryan Ph.D. The abstract of the

subject was in respect of Persistence of Sperm and the Development

of Time Since Intercourse (TSI) was discussed and presented.

Abstract was as under:

“ABSTRACT: The persistence of sperm using

confirmatory microscopic analysis, the persistence of
sperm with tails, time since intercourse (TSI) analysis, and
results from the acid phosphatase (AP) reaction from
approximately 5581 swabs taken from circa 1450 sexual
assault cases are presented. The observed proportions of
sperm in the vagina and anus declines significantly after
48 h TSI, and sperm on oral swabs were observed up to 15
28 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

h TSI. The AP reaction as a predictor of sperm on intimate

swabs is questioned. All AP reaction times gave a low true
positive rate; 23% of sperm-positive swabs gave a negative
AP reaction time. We show the AP reaction is an unsafe
and an unreliable predictor of sperm on intimate swabs.
We propose that TSI not AP informs precase assessment
and the evaluative approach for sexual assault cases. To
help inform an evaluative approach, TSI guidelines are
presented.”

In the said Article Forensic Sciences addressed a number of

frequently asked questions raised by the Forensic Scientist when

investigating sexual assault cases. Questions are:

“* Is there a time interval that you would have an

expectation of finding sperm on vaginal swabs?
* Is there a time interval that you would have an
expectation of finding sperm with tails on vaginal swabs?
* Is there a time interval that you would have an
expectation of finding sperm on internal anal swabs?
* Is there a time interval that you would have an
expectation of finding sperm on internal oral swabs?
* Is AP time a good indicator for the presence of sperm on
vaginal swabs?
* What, if any, is the best cutoff time for the AP reaction on
swabs?
* Is there a relationship between AP reaction time and the
TSI in our data set?
* Is there a relationship between AP reaction time and TSI
29 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

when vaginal swabs are positive or negative?”

Here the relevant questions appear to be question No.1,2&3,

discussion on these questions are as under:

“Question No.1:
Is there a time interval that you would have an
expectation of finding sperm on vaginal swabs?
The compiled results for all sperm-positive vaginal
swabs up to a TSI of 72 h are presented in Table 1. The
difference between the proportions of sperm-positive
vaginal swabs at different time intervals is statistically
significant (p-value < 0.001). The expected proportion of
sperm-positive vaginal swabs at TSI intervals with a 95%
confidence interval (CI) is shown in Fig. 1. This analysis
shows that as a guideline, the expectation of observing
sperm in the vagina decreases significantly after 18 h
(0.35) and again after 48 h (0.2), and beyond 96 h, the
expectation of observing sperm in the vagina can be
considered extremely low (0.02) (Fig. 1, Table 2).
The persistence times for each individual vaginal
swab type are presented in Figs 2-5. Included for reference
are data tables for each swab type (Tables 3-6). In terms of
sperm distributión. trace and 1+ were the most common
grade recorded beyond 48 h (Figs 2-5). The longest
recorded persistence time for sperm in the SAD was a 1+
on a HVS sampled at a TSI of approxi- mately 96 h after
alleged intercourse (Fig. 3). No sperm was recorded on any
vaginal swab type beyond 96 h.
30 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

Question 2:
Is there a time interval that you would have an
expectation of finding sperm with tails on vaginal swabs?
The morphological characteristics (shape, coloration, and
definition) of sperm degrade over time in the vagina.
Qualitative changes due to TSI usually result in the loss of
tails, the loss of quality, and a reduction in sperm
abundance. The presence of tails can be useful for TSI
estimations, but the time lapse associated with the loss of
tails is unclear (7). Silvermann (8) found no significant
difference in the proportion of sperm with or without tails
at any time after sexual intercourse and has suggested that
the loss of tails is not a useful indicator of time since
intercourse. Our findings show that this is not the case;
within the first 12 h, the expectation of observing sperm-
positive vaginal swabs tails was 0.15, and this expectation
declines at a TSI greater than 24 h (0.09) (Fig. 6). This
would be in agreement with the study by ADavies (9),
where tails were most frequently found on sperm swabs
taken up to 12 h. However, sperm with tails have been
reported as late as 72 h (10). No oral or anal sperm-
positive swabs with tails were recorded in the database.
Our findings show that the expectation of finding sperm
with tails after 24 h is very low (Table 7) and that sperm
with tails on vaginal swabs are more likely to be detected
within 12 h TSI.
Question 3:
Is there a time interval that you would have an
31 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

expectation of finding sperm on internal anal swabs?

There is little published information on the persistence of
sperm in the anus. In general, sperm can be detected in the
anus up to 24 h TSI. Sperm can persist for over 2 days after
anal intercourse (9). A total of 510 internal anal swabs
were examined in this study. The persistence and
distribution of sperm- positive anal swabs at each TSI
shown are Fig. 7 and Table 8. The expectation of observing
a sperm-positive anal swab at a TSI of less than 6 h is 0.24,
and this expectation drops as the TSI increases. The
expectation of finding anal swabs positive for sperm at a
TSI of less than 48 h (0.16) can be considered low. and the
expectation of finding sperm at TSI greater than 48 h can
be considered extremely low, 0.023 (Table 9), as it was
observed only once of 42 swabs at a TSI greater than 48 h.
Our experience at FSI is that it is unlikely that sperm will
be detected on internal swabs beyond a TSI of 24 h.
Generally, the examination for the presence of sperm in
internal anal swabs is not carried out beyond a TSI of 72 h,
which is in agreement with the published materials. The
longest recorded persistence time for a sperm-positive
internal anal swab (1+) was at a TSI of 85 h (Fig. 7).”

29. In Modi's Textbook of Medical Jurisprudence and Toxicology

Twenty-first Edition discussed in following words:

“5. The vaginal secretion from the posterior fornix should

always be obtained by introducing a plain sterile
cottonwool swab (or 1 ml. pipette) and the material
32 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

obtained on the swab must immediately be trappelled to a

microscopic slide and spread out in the form of a thin film
and fixed. After staining, the slide should then be
examined microscopically for the presence of human
spermatozoa, which is a positive sign of rape particularly
in the case of children and grown-up virginsangre if does
not necessarily indicate rape, but it proves the occurrence
of a recent sexual intercourse. Even presence of motile
spermatozoa is not necessarily indicative of intercourse
few hours before the time of examination (The presence of
spermatozoa in the vagina mafter intercourse has been
reported by Pollak (1943) from 30 minutes to 17 days, by
Morrison (1972) upto 9 days in vagina and 12 days in the
cervix. However, in the vagina of a dead woman they
persist for a longer period. Estimation of acid
phosphatase levels in fresh specimen may be helpful in
opining for presence of seminal fluid.”

30. In all studies it is clear that no sperm can be found over the

clothes/anal swab/vaginal swab more than some days and certainly

not remain in existence for 5 months. Therefore, taking such swabs

and finding semen over penty vide Exhibit -A, vaginal slide -B and

anal slide -C appears to be a case in which petitioner has been

implicated on false pretext. FSL report dated 19-03-2021 indicates

that over all these three exhibits spot of semen and human sperms

were found. Semen and sperms as discussed above cannot exist for
33 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

such long period because during that period complainant must have

underwent bath, cleanliness and other functions. Therefore, such

report supports the cause of petitioner and such report in fact

indicates nature of allegations which are primarily motivated.

31. In the FIR complainant has referred the fact that petitioner has

videographed such obscene acts and blackmail her. However such

contention lacks merits on the ground that no such CD or pen drive

has been recovered by the Investigating Officer from the petitioner

or from respondent No.2. Similarly it is very unnatural to the

petitioner to blackmail his wife for such acts. There is no occasion

for male to blackmail his wife and it is not clear what goal he could

have achieved by blackmailing her.

32. One more fact assumes importance which petitioner raised in his

petition regarding medical condition of the complainant. Divorce

petition filed with the petition as Annexure A/2 is complete set of

allegations regarding medical condition of respondent No.2. She not

only having mercurial temperament and fought with the petitioner,

his seniors, their wives and petitioner's fellow officers but also

intimidated the petitioner to get conceived with his fellow officer, if

petitioner does not succumb to her demand. She also levelled the

allegation in her FIR against integrity of petitioner and as per

34 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

allegation petitioner was having illicit relationship with other

females. Presumably, disturbed by her disposition, petitioner filed

the divorce petition because all these acts, according to petitioner

constituted mental cruelty.

33. When divorce petition was filed on 25-09-2020 at Family Court

Etawah (U.P.) and notice was issued to the complainant then instead

of appearing in the case she avoided mediation proceedings and as

counterblast lodged this FIR to wreak vengeance.

34. Another interesting twist in the case is that during pendency of the

petition, on 09-02-2023 respondent No.2 has filed an application

under Section 9 of the Act of 1955 for restitution of conjugal rights

before the Family Court, Gwalior bearing RCS HMNo.188/2023.If

she wanted to re-enter into married relationship with petitioner then

why she did not withdraw the allegations as made in FIR. All these

proceedings indicate that domestic dispute exists between the

parties because of non compatibility and being infuriated by divorce

petition filed by petitioner, the complainant (respondent No.2)

initiated all this spree of litigations.

35. In the case of Umang Singhar (supra), this Court has discussed in

detail about the impact of amended provisions of Section 375 of

IPC (as amended in 2013) vis-a-vis Section 377 of IPC and while
35 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

considering the view taken by the Constitutional Bench of Supreme

Court in the case of Navtej Singh Johar and others (supra), held

that in such circumstances (which are existing in the present case

also) no offence under Sections 376 and 377 of IPC is made out. As

per the submission of counsel for the petitioner, said judgment in

Umang Singhar attained finality. Some extracts of the said judgment

are worth consideration:

“21. At this point, if the amended definition of Section

375 is seen, it is clear that two things are common in the
offence of Section 375 and Section 377 firstly the
relationship between whom offence is committed i.e.
husband and wife and secondly consent between the
offender and victim. As per the amended definition, if
offender and victim are husband and wife then consent
is immaterial and no offence under Section 375 is made
out and as such there is no punishment under Section
376 of IPC. For offence of 377, as has been laid down
by the Supreme Court in re Navtej Singh Johar (supra),
if consent is there offence of Section 377 is not made
out. At the same time, as per the definition of Section
375, the offender is classified as a 'man'. here in the
present case is a 'husband' and victim is a 'woman' and
here she is a 'wife' and parts of the body which are used
for carnal intercourse are also common. The offence
between husband and wife is not made out under
Section 375 as per the repeal made by way of
36 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

amendment and there is repugnancy in the situation

when everything is repealed under Section 375 then how
offence under Section 377 would be attracted if it is
committed between husband and wife.
22. In other way, the unnatural offence has not been
defined anywhere, but as has been considered by the
Supreme Court in the case of Navtej Singh Johar
(supra) that any intercourse, not for the purpose of
procreation, is unnatural. But respectfully I find that
when same act as per the definition of Section 375 is not
an offence, then how it can be treated to be an offence
under Section 377 IPC. In my opinion, the relationship
between the husband and wife cannot be confined to
their sexual relationship only for the purpose of
procreation, but if anything is done between them apart
from the deemed natural sexual intercourse should not
be defined as 'unnatural'. Normally, sexual relationship
between the husband and wife is the key to a happy
connubial life and that cannot be restricted to the extent
of sheer procreation. If anything raises their longing
towards each other giving them pleasure and ascends
their pleasure then it is nothing uncustomary and it can
also not be considered to be unnatural that too when
Section 375 IPC includes all possible parts of
penetration of penis by a husband to his wife.
23. Exempli gratia - if sexual intercourse for
procreation via penile-vaginal penetrative intercourse is
considered to be natural sex and sexual relations of
37 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

husband and wife is confined to that extent then in case

if any husband or wife is not capable of procreation,
then seemingly their relationship would become useless,
but it does not happen. The conjugal relationship
between husband wife includes love that has intimacy,
compassion and sacrifice, although it is difficult to
understand the emotions of husband and wife who share
intimate bond, but sexual pleasure is integral part of
their relentless bonding with each other. Ergo, in my
opinion, no barrier can be put in alpha and omega of
sexual relationship between the husband and his wife.
Thus, I find feasible that in view of amended definition
of Section 375, offence of 377 between husband and
wife has no place and as such it is not made out.”

36. Later on, another Coordinate Bench in the case of Manish Sahu

(supra) also quashed the FIR in almost similar fact situation. This

Court is supported by these judgments. So far as the plea of abortion

as done at the instance of petitioner and other co-accused is

concerned, same lacks merit because by the medical opinion given

by Dr. Sanchita Biswas, Consultant Gynaecologist & Obstetrician of

Kailash Hospital Ltd. wherein she opined before Women Police

Station, Padav District Gwalior vide her letter dated 01-03-2021

filed as one of the Annexures at page 159 in Cr.R.No.2595/2022 in

which doctor has specifically opined that in view of ultrasound

38 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

(USG) report which showed early pregnancy failure, patient was

advised for medical abortion on 23-12-2019 and follow up after 10

days. However patient did not turn up to the doctor after advise.

Therefore, contention of complainant gets falsified by the said

medical opinion. Cause of abortion was not marpeet or physical

violence done by accused.

37. In view of the above submissions, offence under Section 377 of IPC

is not made out at all and therefore, it is established that these

allegations are false and fabricated just to implicate the petitioner.

Regarding Other Allegations:

38. So far as allegation of dowry demand and subsequent harassment is

concerned, all allegations are omnibus in nature. No specific dates

and events have been given by the complainant. She only refers

allegations about demand of Fortuner Car. Looking to the conduct

of complainant which compelled the petitioner to write letter dated

11-12-2020 to the Police Station Jalukie, Nagaland about mental

condition and suicidal tendency of the complainant and different

counseling sessions held by senior officers of petitioner for

mercurial behaviour of complainant, there is no iota of doubt that it

is an afterthought. All allegations precipitated after filing of divorce

petition. Prior to it she never made any allegation of harassment for

39 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

dowry demand. She has also filed an application under Section 12

of the Act of 2005 before the JMFC, Gwalior on 22-06-2021 which

is pending consideration. All these proceedings are subsequent to

complaints made by petitioner and divorce case filed.

39. When bouquet of cases like Domestic Violence Act, Section 498-A

of IPC, Sections 9 and 13 of the Act of 1955 and FIR under Sections

354 and 377 of IPC are registered then one has to tread cautiously

because allegations may precede with malice and to wreak

vengeance. “Couple when shares nuptial bliss, has the propensity

to transcendent relation into another dimension but when

shares non compatibility then they are worst enemies”.

40. The Hon'ble Apex Court in the matter of Preeti Gupta Vs. State of

Jharkhand, (2010) 7 SCC 667 and Geeta Mehrotra and another

Vs. State of Uttar Pradesh and another, (2012) 10 SCC 741 has

considered all the aspects of such frivolous allegations and

concluded that in those matters false allegations are levelled to

settle the score and to rope all the family members of bride groom.

In the case of Preeti Gupta (supra) the Apex Court held as under:

“30. It is a matter of common knowledge that

unfortunately matrimonial litigation is rapidly
increasing in our country. All the Courts in our
country including this Court are flooded with
40 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

matrimonial cases. This clearly demonstrates

discontent and unrest in the family life of a large
number of people of the Society.
31. The Courts are receiving a large number of cases
emanating from Section 498-A of the Penal Code
which reads as under:
“498-A. Husband or relative of husband of a woman
subjecting her to cruelty.- Whoever, being the husband
or the relative of the husband of a woman, subjects
such woman to cruelty shall be punished with
imprisonment for a term which may extend to three
years and shall also be liable to fine.
Explanation.- For the purpose of this Section,
'cruelty' means-
(a) any willful conduct which is of such a
nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life,
limb or health (whether mental or physical) of the
woman; or
(b) harassment of the woman where such
harassment is with a view to coercing her or any
person related to her to meet any unlawful
demand for any property or valuable security or
is on account of failure by her or any person
related to her to meet such demand.”
34. Unfortunately, at the time of filing of the complaint
the implications and consequences are not properly
visualised by the complainant that such complaint can
41 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

lead to insurmountable harassment, agony and pain to

the complainant, accused and his close relations.
35. The ultimate object of justice is to find out the truth
and punish the guilty and protect the innocent. To find
out the truth is a Herculean task in majority of these
complaints. The tendency of implicating the husband
and all his immediate relations is also not uncommon.
At times, even after the conclusion of the criminal trial,
it is difficult to ascertain the real truth. The Courts
have to be extremely careful and cautious in dealing
with these complaints and must take pragmatic
realities into consideration while dealing with
matrimonial cases. The allegation of harassment of
husband's close relations who had been living in
different cities and never visited or rarely visited the
place where the complainant resided would have an
entirely different complexion. The allegations of the
complaint are required to be scrutinized with great
care and circumspection.”

41. Therefore, in the present facts and circumstances of the case,

allegations of dowry demand is false and fabricated. It is an after

thought vis-a-vis complaints made by petitioner.

Regarding brother-in-law, father-in-law and mother-in-law

42. In the case in hand father-in-law and mother-in-law are aged 60

years and 56 years respectively who are working as LIC agents at

Etawah and due to non compatibility between couple they have been
42 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

falsely implicated in the matter. General and vague allegations have

been levelled only for the purpose of over implication. Petitioners

of Cr.R.No.2595/2022 filed certain documents vide Annexure A/8 at

page 235 wherein on 05-11-2019 petitioners were at Agra for the

purpose of treatment of Smt. Kusumlata Pathak at Bone Hospital,

Agra. Therefore, allegations in respect of miscarriage/abortion

allegedly caused to complainant on 05-11-2019 is not correct. It is

highly improbable that other accused persons could have increased

the misery of complainant. Abortion of complainant was given the

colour of deliberate miscarriage at the instance of in-laws of which

no complaint was made on any prior date and even no charge was

framed of causing miscarriage by the trial Court and respondent

No.2 never challenged such non framing of charge.

43. Complainant lived either at different field postings of petitioner or

when she was not with petitioner then at her maternal home at

Bhind with her parents then petitioners had no occasion to harass

her for dowry demand. In the conspectus of overall facts and

circumstances of the case, it appears that complainant tried to

implicate the petitioners just to exert pressure over her husband to

succumb.

44. Even otherwise brother-in-law of complainant namely Sumit Pathak

43 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

is a technical man (System Analyst), lives either at Noida (U.P.) or

Pune (Maharashtra), therefore, his separate living even before

marriage of his brother with complainant indicates that he had no

role to play for dowry demand. Interestingly, in the case of

Domestic Violence Act, no allegation has been levelled by the

complainant against brother-in-law (Sumit Pathak) and he is not

party to the said proceedings. However, in the present case, just to

harass the family members these allegations have been levelled.

45. Another aspect deserves consideration is nature of statement under

Sections 161 and 164 of father and brother of respondent No.2 and

other witnesses like Rajkumar Gupta, Rajendra Tiwari, Narendra

Pachori and Neetu Pathak. All made their statements verbatim and

in same fashion. Therefore, it appears that a stereotype allegations

have been levelled just to harass the petitioners and his husband and

shoddy investigation carried out, just to implicate them.

46. The Apex Court in the case of Vineet Kumar and others Vs. State

of Uttar Pradesh and another, (2017) 13 SCC 369 and in the case

of Mohd. Wajid Vs. State of U.P. & Ors. 2023 LiveLaw (SC) 624

held that in exercise of inherent power under Section 482 of Cr.P.C.

or extraordinary jurisdiction under Article 226 of the Constitution,

the Court owes a duty to look into the FIR with care and a little
44 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

more closely. Apex Court expected that Constitutional Court should

interfere in the interest of justice if required, in such matters. Here,

proceedings are manifestly frivolous, vexatious and initiated with

ulterior motive to wreak vengeance.

47. Hon'ble Apex Court in the matter of State of Haryana and others

Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 laid down the

different exigencies under which interference under Section 482 of

Cr.P.C. can be made. Following exigencies are as under:

“(a) where the allegations made in the First Information

Report or the complaint, even if they are taken at
their face value and accepted in their entirety do
not prima facie constitute any offence or make out a
case against the accused;
(b) where the allegations in the First Information
Report and other materials, if any, accompanying
the F.I.R. do not disclose a cognizable offence,
justifying an investi- gation by police officers under
Section 156(1)of the Code except under an order of
a Magistrate within the purview of Section 155(2)of
the Code;
(c) where the uncontroverted allegations made in the
FIR or 'complaint and the evidence collected in
support of the same do not disclose the commission
of any offence and make out a case against the
accused;
45 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

(d) where the allegations in the FIR do not constitute a

cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by
a police officer without an order of a Magistrate as
contemplated under Section 155(2)of the Code;
(e) where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the
basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for
proceeding against the accused;
(f) where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to
the institution and continuance of the proceedings
and/or where there is a specific provision in the
Code or the concerned Act, providing efficacious
redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view
to spite him due to private and personal grudge.”

Thus, the present case falls and covered by exigencies No.

(a), (e) and (g) as enunciated by Hon'ble Apex Court in the matter of

Ch. Bhajan Lal and others (supra). Therefore, this Court intends

to invoke its extraordinary jurisdiction vested under Section 482 of

46 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

Cr.P.C. in all matters and in respect of all accused persons to meet

the ends of justice.

48. This Court does not intend to burden the judgment with plethora of

precedents but for brevity follows the guidelines from the Apex

Court as well as Coordinate Bench of this Court to bring clarity to

the issue. In cumulative analysis and after considering the facts and

circumstances of the case, this Court deem it fit to invoke powers

under Section 482 of Cr.P.C. in respect of all accused persons to

meet the ends of justice and to do substantial and complete justice

between the parties.

49. In view of the above discussion, this Court comes to the conclusion

that no case is made out against petitioners namely Major Amit

Pathak (husband), Sumit Pathak (brother-in-law), Sarvesh Chandra

Pathak (father-in-law) and Smt. Kusumlata Pathak (mother-in-law)

for trial. Case has been registered as counter-blast to the divorce

proceedings because of domestic incompatibility between the

parties. On the basis of medical evidence, no case is made out for

offence under Section 377 of IPC even for trial and on the basis of

omnibus allegations, petitioner cannot be permitted to suffer wrath

of criminal proceedings for false allegations of demand of dowry

{See: State of Gujarat Vs. Kishanbhai and others, (2014) 5

 47 M.Cr.C.No.51674/22, Cr.R.No.2594/22, Cr.R.No.2595/22 & M.Cr.C.No.25093/23

SCC 108)}.

50. Resultantly, all petitions preferred by the petitioners bearing

M.Cr.C.No.51674/2022, Cr.R.No.2594/2022, Cr.R.No.2595/2022 &

M.Cr.C.No.25093/2023 are allowed. Impugned orders are hereby

set aside. FIR registered at crime No.38/2021 at Police Station

Mahila Thana Padav District Gwalior for the offence under Sections

498-A, 377, 354, 506, 34 of IPC and Section 4 of the DP Act against

the petitioners are hereby quashed and all the petitioners are

discharged from all the charges and allegations levelled against

them.

51. Petitions stand allowed and disposed of.

(Anand Pathak)
Anil* Judge

ANIL KUMAR
CHAURASIYA
2024.07.02
10:24:49
+05'30'