* HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLICATION No.378/2011
Date of Decision : 08.07.2011
SONU ...... Petitioner
Through: Mr. Dhan Mohan,
Advocate.
Versus
STATE ...... Respondent
Through: Mr.M.N. Dudeja, Advocate.
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether Reporters of local papers may be
allowed to see the judgment ? NO
2. To be referred to the Reporter or not ? NO
3. Whether the judgment should be reported
in the Digest ? NO
V.K. SHALI, J. (Oral)
1. This is a bail application filed by the petitioner in respect of FIR No.168/2010, registered under section 457/376/506 IPC at P.S. Jahangir Puri, in respect of which the trial is pending before the Court of learned Additional Sessions Judge.
2. The main contention of the learned counsel for the petitioner is that the petitioner is aged about 26 years, whereas the Bail Application No.378/2011 Page 1 of 5 prosecutrix is aged about 46 years and further the sexual intercourse which is purported to have taken place between the petitioner and the respondent is with consent and, therefore, he cannot, prima facie, be held guilty for an offence of rape. He has also drawn the attention of the Court to the medico-legal report, wherein it has been opined by the doctor that there were no fresh injury marks on the person or the private parts of the prosecutrix.
3. As against this, the learned APP has stated that the prosecutrix has also testified in the Court and she has supported the prosecution case. It has also been contended by him that in case the petitioner is released on bail, he is likely to jump the same. So far as the absence of injuries on the person or the private parts of the prosecutrix is concerned, it has been contended by the learned APP that since the prosecutrix was married and had three children, therefore, there was no question of the injuries on the private parts of the prosecutrix as she was admittedly having sexual intercourse with her husband. Hence, such a reason can be Bail Application No.378/2011 Page 2 of 5 the ground for justifying the absence of the injuries on the prosecutrix.
4. So far as the injuries on the person of the prosecutrix is concerned, it is stated by the learned APP that the prosecutrix has testified that firstly the petitioner had been having sexual intercourse with the prosecutrix on the pretext that he would marry her and take care of her and her children and thereafter the entire thing was precipitated, when on 17.05.2010, he forcibly subjected the prosecutrix to physical assault and committed rape on her. Consequently, it is not necessary that in every case despite resistance having been offered, the prosecutrix must suffer injuries and the same cannot be construed as a sine qua non for the prima facie, proof of the offence.
5. I have carefully considered the submissions made by the learned counsel for the parties and also gone through the judgments relied upon by the petitioner.
6. The factual matrix of the judgments, which have been relied upon by the petitioner, in order to contend that the Bail Application No.378/2011 Page 3 of 5 prosecutrix, in the instant case, was a consenting party is certainly distinguishable by the facts of the present case. In the present case, the prosecutrix has already made a statement on oath, stating that firstly the petitioner had been committing the offence of rape by promising her that he would marry her and take care of her and her children and suddenly on 17th May, 2010 he dragged her into her jhuggi, physically assaulted her and thereafter had sexual intercourse against her wishes. The consent, which has been obtained by the petitioner from the prosecutrix in the instant case certainly cannot be said to be voluntary or free from inducement and, therefore, cannot be said to be a free consent. The judgments, which have been relied upon by the petitioner are the judgments, where the woman/the prosecutrix was not married but was certainly having love affair with the boy and it was under the assurance of marriage that the prosecutrix had willingly permitted herself to have sexual intercourse with the accused person. Therefore, this cannot be treated as a rule of thumb that in Bail Application No.378/2011 Page 4 of 5 every case where the consent of a party has been obtained under a promise or under a threat or inducement, no offence under section 376 IPC will be made out. It will depend on the facts of each and every case as to whether in a given set of situation whether consent of the prosecutrix has been obtained. In the present case, the precipitating reason is not the sexual intercourse, which was done by the petitioner with her consent but it was the incident of 17.05.2010, when admittedly it was done against her wishes. In any case, these are the questions to be considered by the learned trial court at the stage of final disposal.
7. Having regard to the severity of the charge and the fact that substantial prosecution evidence has already been examined, I do not feel it to be a fit case to enlarge the accused on bail at this stage.
8. In view of the above, the application is dismissed.
V.K. SHALI, J.
JULY 08, 2011 SS Bail Application No.378/2011 Page 5 of 5