Court shall imply that woman did not consent if she states so, held the Bombay High Court while rejecting the anticipatory bail application to a TV anchor accused of rape.
Case of the Prosecutrix
The 22-year-old prosecutrix contended that merely going into a hotel room does not imply that she consented to engage in sexual activities. It was stated that the accused booked a double – occupancy room and she provided the accused with her identities assuming that the same are required as per Covid- 19 guidelines.
Case of the Accused
The accused prayed for the grant of bail on the ground that case is falsely fabricated as the act was completely consensual in nature. It was further contended that the prosecutrix came to meet the accused from Pune to Delhi and checked in a hotel room with him.
Further it was added that the fact that she herself gave the identity documents that in itself is an indication that she was interested to check in a hotel and spend private time with the accused and develop an intimate relationship with consent. It was also informed to the Court that the accused and the prosecutrix had history of sexual relations.
Observation of Court
The Court observed that the prosecutrix in her complaint as well as her statement under Section 164 of the Code of Criminal Procedure specifically denied that the act was consensual in nature and also stated that she was not able to use the same amount of force in stopping the accused as she was in fear of being getting injured due to his coercive behavior.
The conversations between the parties depicting the accused being sorry for his acts were also taken into consideration. In the words of the Court:
“This question of treating “no” as “yes” coupled with the conduct of the prosecutrix and the accused is a matter of trial, only when prosecutrix will get a chance to record her testimony. But at this stage of anticipatory bail application, this court cannot lose the focus of the facts of this case and ingredients of the commission of the offence under Section 375/376 IPC. Despite of the fact that that accused and prosecutrix were having a loving relationship and they indulged in sexual explicit talks that is also not going to make any difference at this stage in view of section 53 (a) of Indian Evidence Act.
The section provides that evidence of character or previous sexual assault experiences not relevant in certain cases including the offence under Section 376 and this provision specially shows that previous sexual experiences with any person shall not be relevant on the issue of such consent or quality of consent.”
The Court further observed that:
"the woman’s previous sexual experiences with the journalist have no bearing on the case whatsoever. The previous conduct and consent cannot be as sumedas implied consent and the same is buttressed by Section 114 of the Indian Evidence Act”.
Case Details
Before: Bombay High Court
Case Title: Varun Hiremath v. State of Maharasthra
Coram: Hon’ble Justice Prakash D. Naik
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