Sonu vs State
2011 Latest Caselaw 3224 Del

*              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

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

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

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

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