Kapil Som And Another vs State Of U.P. And Another

Neutral Citation No. -
2026:AHC:121264
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 2737 of 2026
Kapil Som and another
…..Appellant(s)
Versus
State of U.P. and another
…..Respondent(s)
Counsel for Appellant(s) : Aditya Prasad Mishra
Counsel for Respondent(s) : G.A.
A.F.R. Reserved
Court No. - 51
HON'BLE MADAN PAL SINGH, J.
1. Heard learned counsel for the appellants and the learned A.G.A.
for the State. Despite the fact that notice has been served as per the
counter affidavit filed on behalf of the State, no one appeared for
opposite party no.2.
2. By means of the present criminal appeal under Section 14A(1) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989, the appellants have prayed for quashing of the order dated 5th
July, 2025 passed by the Special Judge (S.C./S.T. Act), Moradabad in
Special Sessions Trial No. 1283 of 2025 (State Vs. Kapil Som &
Another) arising out of Case Crime No. 29 of 2025, under Sections
352, 351 (2) 69 B.N.S. and Sections 3 (1) (r), 3 (1) (s) and Section 3
(2) (v) of SC/ST Act Police Station-Mahila Thana, District-Moradabad
as well as further proceedings of above mentioned criminal case. 
3. Brief facts are that a first information report has been lodged by
opposite party no.2 (prosecutrix herein) against the appellants along
with four named persons on 1st May, 2025 at 18:35 hrs. which has
been registered as Case Crime No. 29 of 2025, under Sections 352,

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351 (2) 69 B.N.S. and Sections 3 (1) (r), 3 (1) (s) and Section 3 (2) (v)
of SC/ST Act Police Station-Mahila Thana, District-Moradabad. In the
first information report, it has been alleged by the prosecutrix that
about 3 years ago, accepting the fraud request of  Kapil Som
(appellant no.1 herein) on the prosecutrix's Insta ID, started talking to
appellant no.1 and one day appellant no.1 told the prosecutrix that he
likes her as she is very beautiful and he wants to meet her and also
talk about their marriage after coming to Moradabad, on this, the
prosecutrix said to appellant no.1 to come to her sister house, namely,
Kamlesh siutated in Kanshi Ram Yojana, where everything will be
discussed. Appellant no.1 came to the house of the sister of the
prosecutrix and proposed to come to Meerut along with him, where
they will get married. Believing the words so given by appellant no.1,
the prosecutrix went to Meerut and appellant no. 1 had physical
relations with her against her will several times in his house even
before marriage. On the pressure of the prosecutrix, appellant no.1, 
 lying to the prosecutrix, his father i.e. appellant no.2 and relative of
appellant no.1 took her to Meerut court and made her sign on a stamp
on 1st October, 2022 and said that now her marriage with appellant
no.1 has been registered and they both will live as husband and wife.
After some time, in December, 2023, appellant no.1 left the prosecutrix
at Moradabad Zero Point and ran away. The prosecutrix complained
about the same to the Senior Superintendent of Police, upon which
appellant and his father (appellant no.2) took her back to Meerut.
Taking the prosecutrix to their house at Meerut, appellant no.2 found
the prosecutrix  alone and raped her several times in the room. When
the prosecutrix complained about the same  to appellant no.1, he
abused her by indicating as "Chamariya" and said that he did not marry
her as it is their business. After trapping girls like the prosecutrix, the
appellants take away their money and they also use them. Appellant
no.1 allegedly swindled approximately 2 to 2.5 lakhs rupees from the
prosecutrix as cash and online. Last year, when the prosecutrix
informed her family about the same her family members arrived at the
house of appellant no.1 to take her back, appellant nos. 1 and 2,
sisters of appellant no.2, namely, Vishakha, Preeti, Monica, and brother
Rahul, all of them, abused the prosecutrix and her family members

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CRLA No. - 2737 of 2026
and threatened to kill her and said them to get out from their house as
they have no relationship with her. Thereafter the appellants and their
relatives threw the prosecutrix  out from their house. After registration
of the said first information report, the investigation was proceeded.
After completion of investigation, charge-sheet was submitted against
the appellants on which cognizance was taken and summoning order
of appellants was also passed by means of the order impugned. Hence
the present criminal appeal.
4. Learned counsel for the appellants submits that as per the
prosecution, the alleged incident started from 1st October, 2022 but the
first information report was lodged by the prosecutrix on 1st May, 2025
at 18:35 hours i.e. after two years and eight months for which no
plausible explanation has been given and the same appears that the
said first information report is an afterthought.  He then submits that
admittedly the prosecutrix came in the contact of appellant no.1 and
she herself joined the company of appellant no.1 on her own sweet
and free will. On 1st October, 2022 admittedly the prosecutrix entered
into marriage agreement and she would started living with appellant
no.1 as her wife on her sweet will. The prosecutrix remained in the
company of appellant no.1 for more than one year without any protest
or raising any alarm. As per her own version as unfolded in the first
information report and her statements recorded under Sections 161
and 164 Cr.P.C., she paid handsome amount to appellant no.1 on her
own free will. 
5. It is then submitted that the appellants are innocent, as the
allegations made in the first information report implicating the
appellants along with other accused are false and fabricated. The first
information report lodged by opposite party no.2 is nothing but a
bundle of lie and the same has been lodged only for exploiting the
appellants by indulging their names in a fake, false and frivolous case.
The entire prosecution story as unfolded in the first information report
is absolutely a self-made story projected by opposite party no.2. The
relation between the appellant no.1 and the informant is consensual in
nature. There is no independent witness, who came forward to support
the prosecution version. The allegation made against appellant no.2

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CRLA No. - 2737 of 2026
who is none other than the father of appellant no.1, is only exerted
pressure upon appellants in order to complete the ulterior motive of
opposite party no.2.
6. It is next submitted that the allegation made by opposite party
no.2 against the appellants does not constitute the offence under
Section U/s, 352, 351 (2), 69 B. N. S. 2023 and U/s 3 (1) (r), 3 (1) (s), 3
(2) (v) of The Schedule Caste and Schedule Tribes (Prevention Of
Atrocities) Act 1989 in view of the judgment of the Hon'ble Apex Court
rendered in the case of Sheikh Arif versus The State of Maharashtra
and Another passed in Criminal Appeal No. 1368 of 2023 as well as in
the case of Naim Ahmad versus The State (NCLT Delhi) passed
Criminal Appeal No. 257 of 2023.
7. It is also submitted that a bare perusal of the FIR shows no
allegations constituting the offences under the SC/ST Act against the
appellant. No incriminating evidence was produced before the
Investigating Officer to substantiate the claim that the victim was
exploited by the appellant on a false promise of marriage. Notably,
neither the FIR nor the victim's statements under Section 161 Cr.P.C.
and 164 Cr.P.C. disclose the duration of the relationship between the
appellant and the victim. It merely levels a bald allegation of
exploitation on the pretext of false marriage. She alleged that when she
asked the appellant to solemnize the marriage, he replied that he did
not marry her as it is their business to trap girls like prosecution and to
take away their money and they also use them. Appellant no.1
allegedly swindled approximately 2 to 2.5 lakhs rupees from the
prosecutrix as cash and online.
8. Learned counsel for the appellant further submits that in her
statements recorded under Sections 161 and 164 Cr.P.C., the
victim/prosecutrix/opposite party no.2 herself has admitted that she is
24 years old and have studied till class 12 i.e. a major capable of
understanding the consequences of her actions. The contents of the
FIR, read with the victim's statements under Sections 161 and 164
Cr.P.C., clearly indicate that even assuming the prosecution's
allegations to be true, the relationship was consensual. The omission
to specify particulars of any promise of marriage by the appellant gives

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CRLA No. - 2737 of 2026
rise to a presumption that no such promise was made. Mere allegation
of rape based on a pretext of marriage is insufficient unless the
prosecution proves that the victim consented to the sexual relationship
relying on such a promise. Absent substantiation of this material fact,
the allegation of rape cannot stand. Thus, the entire proceedings
against the appellant are liable to be quashed.
9. Learned A.G.A. for the State has opposed the submissions made by
the learned counsel for the appellants by contending that the victim's
statement clearly shows that she was deceived by the appellant, who
promised marriage to satisfy his lust. She stated that when she
pressed for marriage, the appellant refused, citing their different castes
as the reason. The appellant no.1 established physical relations with
her repeatedly on the pretext of marriage but later refused to marry.
The victim's statement is cogent, clear, and consistent, establishing the
guilt of the accused-appellants. Since there is no illegality or infirmity in
the order impugned, hence, this criminal appeal lacks merit and is
liable to be dismissed.
10. I have considered the facts and circumstances of the case, the
submissions advanced by the learned counsel for the appellants and
learned A.G.A. for the State and also perused the material available on
the record.

11. Before entering into the facts of this case, it would be proper to
examine the difference between false promise of marriage to induce a
woman to obtain her consent for physical relationship and breach of
promise to marry. Sexual relationship amounts to rape if it is obtained
without consent of women. What amounts to "consent" as mentioned in
Section 375 IPC is defined in Section 90 IPC.
Section 90 of I.P.C. defines consent known to be given under fear or
misconception:-
"90. Consent known to be given under fear or misconception.- A
consent is not such a consent as intended by any section of this Code,
if the consent is given by a person under fear of injury or under a
misconception of fact, and if the person doing the act knows, or has

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reason to believe, that the consent was given in consequence of such
fear or misconception; or
Consent of insane person.- if the consent is given by a person who,
from unsoundness of mind or intoxication, is unable to understand the
nature of the consequence of that to which he gives his consent; or
Consent of child.- unless the contrary appears from the context, if the
consent is given by a person who is under 12 years of age."
12. Reading the definition of "consent" (Section 90 IPC) with the
definition of "rape" (Section 375), it becomes manifest consent of
women is vitiated if she is convinced to engage in sexual relationship
with accused who induces her with false promise to marry.
13. The Supreme Court in Pramod Suryabhan Pawar vs The State Of
Maharashtra, reported in AIR 2019 S C 4010, while dealing with a
similar situation, enunciated principles of law by following
observations:-
"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 woman to convince her to engage in sexual relations, there
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, the maker of the promise should
have had no intention of upholding his word at the time of giving it…"
The Supreme Court was further observed:
"To summarise the legal position that emerges from the above cases,
the "consent" of a woman with respect to Section 375 must involve an
active and reasoned deliberation towards the proposed act. To
establish whether the "consent" was vitiated by a "misconception of
fact" arising out of a promise to marry, two propositions must be
established. The promise of marriage must have been a false promise,
given in bad faith and with no intention of being adhered to at the time
it was given. The false promise itself must be of immediate relevance,
or bear a direct nexus to the woman's decision to engage in the sexual
act."
14. Hence, it becomes evident that a man can be held criminally liable
for having a sexual relationship on the basis of a false promise of
marriage only if the sexual relationship happened solely because of
that false promise. If the relationship occurred due to other reasons,
the offence is not made out. A woman may choose to enter into a
physical relationship for reasons other than a promise of marriage,

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such as mutual affection or personal choice, even without insisting on
marriage.
15. Now, the next significant question arises as to when and how an
accused can be held guilty for inducing a woman to engage in sexual
relationships by making false promise of marriage?
16 It is trite that in criminal cases, where accused is alleged to have
committed rape, testimony of victim becomes significant and if her
statement is of sterling quality, it does not even require corroboration.
However, converse is also true because law regarding appreciation of
evidence does not distinguish between different categories of
witnesses and no privilege has been extended to victim of rape. There
is no universal law to treat statement of victim as gospel truth. The
Supreme Court in Abbas Ahmed Choudhury v. State of Assam reported
in (2010) 12 SCC 115 held that a case of sexual assault has to be
proved beyond reasonable doubt as any other case and that there is
no presumption that a prosecutrix would always tell the entire story
truthfully.
17. The proposition as discussed in preceding paragraph applies
equally in cases where the allegation against accused is of inducing
the victim to engage in sexual relationship by making false promise to
marry. In order to fasten an accused of such criminal liability, it is
necessary for prosecution to come up with adequate evidence to show
that at relevant time, i.e, at the initial stage itself, the accused had no
intention of keeping his promise to marry the victim. The Supreme
Court in Deepak Gulati v. State of Haryana", reported in AIR 2013 SC
2071, held as follows:
"24. Hence, it is evident that there must be adequate evidence to show
that at the relevant time i.e. 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 keep a promise made with
respect to a future uncertain date, due to reasons that are not very
clear from the evidence 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 aid in such a situation, to pardon
the act of a girl in entirety, and fasten criminal liability on the other,

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unless the court is assured of the fact that from the very beginning, the
accused had never really intended to marry her."
18. Hence, it evident that before an accused can be held liable, it is
necessary that (a) the accused never intended to marry the victim from
the beginning. A mere failure to marry, due to later circumstances, does
not amount to deception. Section 90 IPC applies only when dishonest
intention existed at the outset and, (b) same has to be proved by
adequate evidence.
19. From the foregoing discussions, it is apparent that establishing
physical relationships with a woman by making false promise of
marriage is an offence which vitiates her consent and it attracts offence
under Section 376 IPC. Breach of promise is generally defined as the
failure of one party to fulfill a mutual agreement or commitment to
marry another and it is viewed as a civil wrong. In order to hold an
accused criminally liable for committing rape on pretext of false
promise of marriage, it is necessary that prosecution must establish
that accused right from the beginning cheated victim without any
intention to marry with an intent to satisfy his lust. Hence, the essential
ingredients of the offence are:
(a) the accused made a promise to marry the victim;
(b) the promise was false and not intended to be fulfilled;
(c) the promise was made with the intention of deceiving the victim and
inducing her to consent to a sexual relationship;
(d) the dishonest intention to deceive and cheat existed from the very
inception of the promise; and
(e) the victim's consent for the sexual relationship was obtained solely
on the basis of such false promise;
(f) for consent to be vitiated by a false promise, the promise must have
immediate relevance to the woman's decision to engage in intercourse;
(g) there must be adequate evidence to show that promise made by
accused from its inception was made without any intention to fulfill.

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20. In light of the aforesaid legal principles, a careful scrutiny of the FIR
and the victim's statements under Sections 161 and 164 Cr.P.C.
reveals only bald allegations of exploitation on the pretext of marriage
without disclosing the duration of the relationship or any
contemporaneous promise. In the first information report as well as in
the statements recorded under Sections 161 and 164 Cr.P.C., the
victim/prosecutrix has through out stated that T hree years ago, the
prosecutrix met and talked to appellant no.1 on Instagram. One day,
Kapil said that she looks very beautiful to him and he want to meet her
and talk about their marriage on which she said to him to come to her
th
sister's house in Kanshi Ram Awas Yojna. Appellant no.1 came on 28
October, 2022 and then he asked the prosecutrix to come to his house
at Meerut. She came to his house along with him at Meerut where the
appellant no.1 had established physical relations with her for 56 days
without her consent. When the prosecutrix asked the appellant no.1 as
to when will he solemnize marriage with her, then appellant no.1 took
her along with his family members and some of his relatives to Civil
Court (Kachehri) and got her signature appended on a stamp of Rs.
50. After that, the appellant no.1 said to the prosecutrix that their
marriage is over and now both of them will live as husband and wife.
The prosecutrix has further stated that in December, 2023 the
appellant no. 1 left the prosecutrix at Jeera Point and went away, after
which she gave an application to the concerned Superintendent of
Police then from Kotwali Police Station, both appellants, uncle and
other relatives of appellant no.1 took the prosecutrix to Meerut.
21. From the aforesaid statements of the proseuctrix it is clear that
the prosecutrix used to chat with the appellant no.1 for about three
days on Instagram of her own free will. It is also very surprising from
the above statements that a 24 year major girl, without knowing about
the Appellant No. 1, calls him to her sister's place and on his insistence
goes to his house the very next day and stays there for 56 days where
the Appellant No. 1 establishes physical relations with her without her
consent, about which she does not complain to any one. It is also
worth noting here that the prosecutrix’s mother, father, brother and
sister also send the prosecutrix along with the appellant no.1 without

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CRLA No. - 2737 of 2026
even knowing about him. They do not raise any objection for almost a
year and they come only when the prosecutrix calls them as stated by
the prosecutrix in her statements. The aforesaid statements of the
prosecutrix clearly shows that there were consensual relationship
between the appellant no.1 and the prosecutrix.
22. Besides the above, this Court also finds that as per the version
st
of the first information report lodged on 1 May, 2025 she was in
contact of the appellant through Instagram before three years and as
per the statements of the prosecutrix under Sections 161 and 164
Cr.P.C., she went at the place of appellant i.e. Meerut along with him in
October, 2022 and till December, 2023 she was in relation with the
appellant no.1 at his house as wife and husband, meaning thereby that
when the alleged offence was committed by the appellant no.1 upon
the proseuctrix between the period 2022 to 2023, the Bhartiya Nyay
Sanhita has not come into force. The said Sanhita has come into force
st
on 1 July, 2024, meaning thereby that any section of said Sanhita
cannot effect retrospectively it can effect prospectively. As such offence
under Section 69 of B.N.S. is not made out against the appellant no.1.
23. The absence of proof that the essential ingredient of a "promise to
marry" is specifically that the promise was made without any intention
of fulfilling it from the beginning------does not invalidate consent of
victim for sexual relations under Section 90 read with Section 375 of
the Indian Penal Code, 1860. A consensual sexual relationship
followed by a subsequent refusal to marry does not render the accused
liable for rape. This position finds consistent support in the
jurisprudence of the Supreme Court, as laid down in Deepak Gulati
(Supra) and Pramod Suryabhan Pawar (Supra), wherein it has been
emphatically held that mere breach of promise to marry, in absence of
initial dishonest intent, cannot convert consensual physical relations
into rape. Treating every such refusal to marriage as vitiated consent
would dilute the sanctity of Section 375 IPC and overburden the
criminal justice system with cases arising from soured relationships
rather than genuine sexual offences.
24. These materials, even if assumed true, fail to establish the
essential ingredients: (a) no adequate evidence shows the promise, if

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CRLA No. - 2737 of 2026
any, was false from inception with dishonest intent to deceive solely for
lust; (b) the relationship appears driven by mutual affection over four
months rather than immediate reliance on a false promise; and (c)
subsequent refusal citing caste difference suggests breach of promise
at best, not deception ab initio. Mere failure to marry due to later
circumstances does not vitiate consent under Section 90 IPC, as held
in Pramod Suryabhan Pawar (supra) and Deepak Gulati (supra).
25. The Hon’ble Supreme Court of India In the case of Mahesh
Damu Khare Vs. The State of Maharashtra & Others reported in 2024
SCC OnLine SC 347 has opined that that……...The fact that the
complainant continued to have a physical relationship for a long time
without any insistence on marriage would indicate the unlikelihood of
any such promise made by the appellant for marrying her and it rather
indicates that the relationship was a consensual one.
(Emphasis supplied)
26. Further the Hon’ble Supreme Court of India has opined that the
longer duration of the physical relationship between the partners
without protest and insistence by the female partner for marriage would
be indicative of a consensual relationship rather than a relationship
based on false promise of marriage by the male partner and thus,
based on misconception of fact. Moreover, even if it is assumed that a
false promise of marriage was made to the complainant initially by the
appellant, even though no such cogent evidence has been brought on
record before us to that effect, the fact that the relationship continued
for nine long years, would render the plea of the complainant that her
consent for all these years was under misconception of fact that the
Appellant would marry her implausible. Consequently, the criminal
liability attached to such false promise would be diluted after such a
long passage of time and in light of the fact that no protest was
registered by the complainant during all those years. Such a prolonged
continuation of physical relationship without demurral or remonstration
by the female partner, in effect takes out the sting of criminal culpability
and neutralises it.
(Emphasis supplied)

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CRLA No. - 2737 of 2026
27. Then the Hon’ble Supreme Court of India has expressed its
opinion that it will be very difficult to assume that the complainant who
is otherwise a mature person with too grown up child, was unable to
discover the deceitful behaviour of the appellant who continued to have
sexual relationship with her for such a long period on the promise of
marriage. Any such mendacious act of the appellant would have been
exposed sooner without having to wait for nine years. The inference
one can draw under the circumstances is that there was no such false
promise made to the complainant by the appellant of marriage by
continuing to have physical relationship so as to bring this act within
the province of Section 376 IPC and therefore, there was no vitiation of
consent under misconception of fact. Further, it appears that
discontinuance of financial support to the complainant, rather than the
alleged resiling from the promise to marry by the appellant appears to
be the triggering point for making the allegation by the complainant
after a long consensual relationship for about nine years.
28. On the basis of aforesaid opinion, the Hon’ble Surpeme Court of
India has viewed that if criminality is to be attached to such prolonged
physical relationship at a very belated stage, it can lead to serious
consequences. It will open the scope for imputing criminality to such
long term relationships after turning sour, as such an allegation can be
made even at a belated stage to drag a person in the juggernaut of
stringent criminal process. There is always a danger of attributing
criminal intent to an otherwise disturbed civil relationship of which the
Court must also be mindful.
(Emphasis added)
29. Relying the judgment of Pramod Suryabhan Pawar (Supra) and
Mahesh Damu Khare (Supra), Hon’ble Supreme Court of Indian in the
case of Nitin B. Nikhare Vs. The State of Maharashtra & Another in
Criminal Appeal No(S)…...of 2025 arising out of SLP (Crl.) No. 1889 of
st
2024 decided on 21 January, 2025, in paragraph no. 6 has held that
mere fact that physical relations were established pursuant to a
promise to marry will not amount to a rape in every case. In order for
the offence of rape to be made out, two conditions need to be satisfied
i.e. that the promise of marriage was made by the accused solely with

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a view to obtain consent for sexual relations without having any
intention of fulfilling said promise from the very beginning, and that the
false promise of marriage had a direct bearing on the prosecutrix giving
her consent for sexual relations.
30. For charges under Sections 352, 351 (2) and 69 of B.N.S. 2023,
the claims of assault, abuse and threats are too vague and general. No
specific details appear in the FIR or statements, so no initial case is
made out.
31. No offences under Sections 3(1)(r), 3(1)(s), or 3(2)(v) of the SC/ST
Act are made out either. The FIR and victim's statements lack any
specific caste slurs aimed at her SC/ST status, said in public to
humiliate her. Just mentioning caste differences in refusing marriage
does not meet the legal requirements, so Section 14-A(1) of the SC/ST
Act does not apply.
32. Hence, this Court is of view that allowing the criminal proceeding
against the appellant in the facts and circumstances to continue, where
no criminal liability can be attached, would amount to abuse of the
process of court. Therefore, appellant is entitled to the relief claimed for
quashing the complaint/ FIR.
33. In view of the aforesaid, the impugned order dated 5th July, 2025
as well as the entire proceedings of Special Sessions Trial No. 1283 of
2025 (State Vs. Kapil Som & Another) arising out of Case Crime No. 29
of 2025, under Sections 352, 351 (2) 69 B.N.S. and Sections 3 (1) (r),
3 (1) (s) and Section 3 (2) (v) of SC/ST Act Police Station-Mahila
Thana, District-Moradabad pending in the Court of Special Judge
(S.C./S.T. Act), Moradabad are quashed.
34. This criminal appeal is, accordingly, allowed.
(Madan Pal Singh,J.)
May 26, 2026
Sushil/-
Digitally signed by :-
SUSHIL KUMAR SINGH
High Court of Judicature at Allahabad