Mumbai: The Goa bench of the Bombay High Court, while setting aside a trial court order discharging a man accused of raping a woman inside a hotel room without her consent, said that if a woman booked and went inside the room along with a man, it cannot be considered as her consent for sexual intercourse.
Justice Bharat P Deshpande directed the trial court to frame charges against the accused for the offence of rape while hearing an appeal filed by the State challenging an order passed by Additional Sessions Judge (ASJ), Margao in 2021. The State questioned the findings of the sessions court, which disbelieved the victim on the basis of the statements of other witnesses on the ground that it appears to be a consensual relationship.
Accused, after closing room at hotel, threatened and had sexual intercourse without consent: Victim
The victim in her statement said that the accused, after closing the room at the hotel, threatened her to kill and thereafter had sexual intercourse without her consent. She stated that once the accused went inside the bathroom, she immediately came out of the room and went running towards the ground floor and then called the police by dialing the number 100.
Accused, complainant were instrumental in booking room but that would not be considered as consent given by victim: HC
“It is no doubt true that there is material to show that the accused and the complainant were instrumental in booking the room, however, that would not be considered as consent given by the Victim for the purpose of sexual intercourse,” the High Court said.
Victim has been disbelieved only because she accompanied accused and went inside room: State
The State submitted that the question before the trial court was only with regard to framing of charge against the accused, however, the tenor of the order passed while discharging the accused show that the entire burden is put on the complainant/victim and she has been disbelieved only because she accompanied the accused and went inside the room. In spite of specific statements recorded in the complaint and thereafter in her statement, trial court evaluated her statements as if the victim has deposed in the court and disbelieved her on the basis of the statements of other witnesses on the ground that it appears to be a consensual relationship, it added.
Victim voluntarily accompanied accused to book room at a hotel and thereafter they went inside: Accused’s counsel
The counsel representing the accused opposed the plea of the State and argued that the victim voluntarily accompanied the accused to book the room at a hotel and thereafter, they went inside. As per the counsel, the accused and the victim verified the room, made the payment and then had lunch before entering the room.
The High Court, after hearing the arguments, said that the trial court clearly committed an error by observing that since the victim went inside the room, she consented to sexual intercourse.
Overt act allegedly carried out in room by accused was not consensual: High Court
“Drawing such an inference is clearly against the settled proposition and specifically when the complaint was lodged immediately after the incident. Even if it is accepted that the victim went inside the room along with the accused, the same cannot by any stretch of imagination be considered as her consent for sexual intercourse,” the High Court said.
“The learned Additional Sessions Judge has clearly mixed two aspects i.e. going inside with the accused in a room without any protest and secondly, giving consent for what happened in the room. The action on the part of the complainant immediately after coming out of the room and that too crying, calling the police and lodging a complaint on that day itself show that the overt act allegedly carried out in the room by the accused was not consensual,” the High Court added.
High Court set aside trial court order and directed for framing of charges against accused
The High Court, while setting aside the trial court order and directing for framing of charges against the accused for the offence of rape, further said that the statement given by the complainant/victim as well as recorded under section 164 of Code of Criminal Procedure (CrPC) cannot be disbelieved in a manner which the trial court did and that too while passing an order for discharging the accused and the only job to find out was whether there is strong suspicion and if it is found that there is material to frame a charge, it is the bounden duty of the court to frame the charge and put the accused to trial.
