JUDGMENT : (Shamim Ahmed, J.) 1. Heard Sri Vashu Deo Mishra, learned counsel for the appellant, Sri Bhupendra Nath Tripathi, learned counsel for the complainant, Ms. Shikha Sinha, learned Additional Government Advocate for the State and perused the material available on record. 2. The present Criminal Appeal under Section 14-A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been preferred against the impugned order dated 05.09.2022 passed by the learned Special Judge, SC/ST Act, Lucknow in Bail Application No. 6984 of 2022 (CNR No. UPLKO10119882022), Case Crime No. 0537 of 2022, under Sections 354, 323, 504, 506, 376, 313, 328, 392 IPC and Sections 3(2)(v) of SC/ST Act, Police Station Chinhat, District Lucknow, whereby the bail application of the appellant has been rejected. 3. Learned counsel for the appellant submits that the appellant is innocent and has falsely been implicated in the present case. No such incident took place, as alleged by the prosecutrix in the First Information Report. It is a case of false promise of marriage and the parties are consenting. Thus, the allegation of rape is false, even though, no ingredient of Section 3(2)(v) of SC/ST Act is attracted against the applicant. The prosecutrix is major and with her consent, the physical relation was made by the appellant. Thus, the entire allegation is false and fabricated. Therefore, the present appeal be allowed and the appellant be released on bail. 4. Per contra, Sri Bhupendra Nath Tripathi, learned counsel for opposite party no. 2 as well as Ms. Shikha Sinha, learned AGA for the State-opposite party no. 1 opposed the prayer for bail and submitted that prima facie, from the plain reading of the First Information Report, the cognizable offence is made out. In this case, chargesheet has already been submitted against the appellant. The prosecutrix has made balled allegation of committing rape several times by the appellant after giving some intoxic material and also demanding money from the prosecutrix. Even though, she was pregnant and on the pressure created by the appellant, abortion was made. As per the version of the FIR, the marriage of the prosecutrix was also solemnized with some other person. There also the appellant put pressure and threatened her to send the naked photographs and video to her husband which he has obtained at the time of first physical relation with the prosecutrix forcefully. As per the version of the FIR, the marriage of the prosecutrix was also solemnized with some other person. There also the appellant put pressure and threatened her to send the naked photographs and video to her husband which he has obtained at the time of first physical relation with the prosecutrix forcefully. The prosecutrix made a request to return all the alleged videographs and photographs, even though the pen drive, but the appellant refused and threatened her for dire consequences. Thus, the present appeal be rejected and the appellant is not entitled to get any relief by this Court. 5. In support of his argument, Sri Bhupendra Nath Tripathi, learned counsel for opposite party no. 2 has placed reliance on the judgment rendered in the case of Dr. Dhruvaram Murlidhar Sonar: (2019) 18 SCC 191 , wherein Hon'ble the Apex Court has observed that there is a clear distinction between rape and consensual sex and, in such cases, it must be very carefully examined whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. The Supreme Court after referring to various decisions has observed as follows: "Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under section 376 of the IPC." 6. It has been settled view that the question whether consent given by the prosecutrix to sexual intercourse is voluntary or whether it is given under "misconception of fact" depends on the facts of each case. While considering the question of consent, the Court must consider the evidence before it and the surrounding circumstances before reaching a conclusion. Evidence adduced by the prosecution has to be weighed keeping in mind that the burden is on the prosecution to prove each and every ingredient of the offence. Prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that accused had no intention to marry prosecutrix at all from inception and that promise made was false to his knowledge. 7. Learned counsel for the complainant further submits that in Anurag Soni v. State of Chhattisgarh, (2019) 13 SCC 1 : AIR 2019 SC 1857 , the accused never intended to marry the prosecutrix; he gave false promises/promise to the prosecutrix to marry her and on such false promise he had physical relationship with the prosecutrix; the prosecutrix initially resisted, however, gave the consent relying upon the false promise of the accused that he will marry her and, therefore, her consent can be said to be a consent on misconception of fact. The prosecutrix, in the present case, was an educated girl studying in B. Pharmacy. Therefore, it is not believable that despite having knowledge that that appellant's marriage is fixed with another lady, she and her family members would continue to pressurize the accused to marry and the prosecutrix will give the consent for physical relation. Even considering Section 114A of the Evidence Act which has been inserted subsequently, there is a presumption and the court shall presume that she gave the consent for the physical relationship with the accused relying upon the promise by the accused that he will marry her. Even considering Section 114A of the Evidence Act which has been inserted subsequently, there is a presumption and the court shall presume that she gave the consent for the physical relationship with the accused relying upon the promise by the accused that he will marry her. From the very inception, the promise given by the accused to marry the prosecutrix was a false promise and from the very beginning there was no intention of the accused to marry the prosecutrix as his marriage with Priyanka Soni was already fixed long back and, despite the same, he continued to give promise/false promise and alluded the prosecutrix to give her consent for the physical relationship. The Supreme Court after having discussed the law on the point held as follows: "The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on misconception of fact as per Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375of the IPC and can be convicted for the offence under Section 376 of the the IPC." 8. Thus, learned counsel for the opposite party no. 2 submits that in view of the judgment rendered by the Hon'ble Supreme Court, it is not a case of consent. Thus, it amount to rape and in view of the judgment of Hon'ble Supreme Court, the present appeal be rejected. 9. After considering the arguments, as advanced by learned counsel for the parties and after perusal of record, this Court finds that the appellant committed rape several times with the prosecutrix either giving some intoxic material or on some false promise of marriage, even though as per the version of the First Information Report, the prosecutrix was pregnant and was forcefully aborted on the instance of the present appellant. Anyhow, the prosecutrix marriage was solemnized with some other person. Anyhow, the prosecutrix marriage was solemnized with some other person. There also the appellant did not leave her free and always threatened her to give the naked photographs and video to her husband and to her in-laws and tried to make physical relation forcefully several times, after the marriage of the prosecutrix also, that made the entire life of the prosecutrix as hell. Thus, she has no option but she requested the appellant to return all the photographs, videographs and pen drive but the appellant refused for the same. 10. Thus, in the opinion of the Court, the appellant has committed a heinous crime and he is not entitled to get any relief by this Court, as was also observed by the Hon'ble Apex Court in case of Anurag Soni (supra) and also in case of Dr. Dhruvaram Murlidhar Sonar (supra) that if the rape is committed by playing the fraud and on false promise of marriage, then the appellant is not entitled to get any relief. Thus, in view of the opinion of this Court, the impugned order of the court below dated 05.09.2022 is justified. No interference is required by this Court. The appeal is liable to be dismissed. 11. Accordingly, the appeal filed by the appellant is dismissed. 12. File is consigned to record.