Sexual Assault Victims Entitled To Fair Trial, But Justice System's Responsibility Of Protecting Rights Of Accused Can’t Be Ignored: Delhi High Court
The Delhi High Court on Monday said that while the complainants in sexual assault cases are entitled to fair trial, the responsibility of criminal justice system towards protecting the rights of the accused persons cannot be ignored. Justice Swarana Kanta Sharma said that in cases of rape and sexual violence, “conceptualization of definition of sexual consent” is of utmost importance so...
The Delhi High Court on Monday said that while the complainants in sexual assault cases are entitled to fair trial, the responsibility of criminal justice system towards protecting the rights of the accused persons cannot be ignored.
Justice Swarana Kanta Sharma said that in cases of rape and sexual violence, “conceptualization of definition of sexual consent” is of utmost importance so that the “delicate balance between rape and consensual sex” is fairly arrived at.
“The Courts have to ensure that the right of fair trial to the complainant and rights of the accused of being protected from mala fide trial are taken care of in the Court‘s crucial endeavor to ensure equality before law,” the court said.
Justice Sharma made the observations while upholding a trial court order discharging an accused under Sections 376 (punishment for sexual assault) and 506 (punishment for criminal intimidation) of Indian Penal Code, 1860 in an FIR registered in 2017.
It was alleged by the complainant, a married woman, that she met the accused during a train journey in 2005 and became friends. She alleged that in November 2005, the accused came to the factory where she used to work, offered her a glass of juice, after which she became unconscious and was raped by him.
The complaint further alleged that the accused threatened her about showing her video and obscene photographs to her family members and also compelled her to establish physical relationship with him several times till 2017.
In her statement recorded under section 164 of Cr.P.C., the complainant stated that her son and daughter were born from the physical relationship between her and the accused. The report of the DNA test revealed that the DNA profile of the children matched with the DNA profile of the accused and the complainant.
Justice Sharma perused the statement of the complainant wherein she said that in November, 2005, the glass of juice was offered to her on the main road and she was made to sit in the rickshaw in broad day light, where she became unconscious and realized that physical relations had been made by the accused with her when she regained consciousness.
“Prima facie, on the face of it, the very statement itself would indicate that it is difficult to believe her assertions since during day time on the main road, that too at one of the busiest places in Delhi, she was administered some intoxicating substance in a glass of juice at the juice shop itself and was thereafter taken in a rickshaw where she became unconscious. Someone taking a fully grown woman in unconscious condition in a rickshaw in broad day light to another busiest place of Delhi i.e. railway quarters, Daya basti, rather raises questions against her story,” the court said.
The court also noted that the mobile phone in which the alleged video and photographs were shown to the complainant by the accused were neither a part of the chargesheet, nor could be recovered.
“It is also not clear as to why she did not inform the family or any other authority that she was being sexually exploited, or 'raped' for 12 long years against her consent and she also chose to deliver children fathered by the accused herein. It is not a case of a teen-aged girl, an illiterate woman or a person confined after every sexual assault for 12 years. It is rather a case where for every sexual encounter, she had travelled to the house of accused and had thereafter gone back home and had borne two children by such sexual union,” the court said.
The court said that for years, sexual assault was identified with sexual activities with use of violence and absence of the same was considered a woman’s agreement to sexual activity. However, it added, that with development of the jurisprudence of sexual assault and sexual consent, the right to bodily integrity is protected by law and absence of violence is not indicative of rape in all cases.
“Recent years have seen widespread reforms in rape and sexual assault laws and development of jurisprudence in this regard in India. It is to be noted that sexual activity against will of the victim is the main and essential ingredient of sexual assault. It is based on the principle that violation of the sexual autonomy of the victim is a crime,” it added.
It further said that the complainant and the accused had a long history of sexual association of 12 years with two children born out of the relationship and therefore it would be against the judicial precedents to allege or hold that their last association was without consent and terming it as rape.
“There is no denying that law must provide protection to those who may even be prima facie vulnerable to sexual exploitation/assault on the basis of blackmailing or threats. However, that type of protection cannot be available in the social context in which acquaintances or friends have been in, as long sexual relationship as 12 years as in the present case with two children born from such sexual union,” it said.
Justice Sharma further said that in such cases, the court has to also examine the “dynamics of interpersonal relationship” of the accused and the complainant and if the complainant had been pressurized to give up her right of refusal due to a threat.
Noting that the court has “practiced judicial caution” while legally analyzing the prima facie evidence so that it is not based on common assumption, Justice Sharma said:
“The complainant‘s actual communicative behavior in this case has been her undeniable silence, non reporting the case to anyone though she had every opportunity, lack of fear of injury at every step for 12 years and the specific evidence regarding the complainant giving birth to children fathered by accused on some interval of time without any complaint, fact of absence of any inappropriate photographs or video made at any point of time, makes it a case of no evidentiary foundation whatsoever for believing absence of consent even prima facie at the stage of charge.”
It added: “No doubt, in cases of rape depending on facts from case to case, consent cannot be said to be inferred or proved by passivity or silence alone from the complainant. However, continuous consent, as in the present, without any whisper of complaint assists the Court in consent analysis.”
The court thus concluded that it cannot, by any stretch of imagination, be said that a prima facie case is made out under section 375 of IPC for framing charge against the accused.
“It is, however, clarified that since this Court is dealing with a case based on peculiar facts, that involves question as to whether there was a voluntary agreement and affirmative 'Yes' to engage in sexual activities or not, this Court is testing the applicability of laws in the context of this particular case in its peculiar circumstances, and is not laying down any law regarding consent for every rape case,” it said.
Title: X v. State
Citation: 2023 LiveLaw (Del) 257