Sexual Intercourse During Deep Love Affair Not Rape : Bombay HC [Read Judgment]

Bombay High Court has acquitted an accused in a Rape Case finding that there was a deep love affair between the Accused and prosecutrix.

 “It is evident that PW-1 not only continued with the relationship with the appellant after the first incident, but, also went to the extent of withdrawing the complaint by filing an affidavit (Exhibit-26), in CRIA No. 16/2015 16 which, she has stated that she could not see the appellant behind bars, who was then under depression and was undergoing treatment at IPHB hospital, Bambolim and was desirous of withdrawing the complaint due to her personal reasons and emotions. This would clearly show that there was deep love affair between the appellant and PW-1. It cannot be said that the consent given by PW-1 was on account of any promise of marriage made by the appellant”

The Court also held that under Section 114 A of the Evidence Act of 1872, presumption as to absence of consent in certain prosecutions for rape is rebuttable.

Justice CV Bhadang of the Goa bench of the Bombay High Court passed a 20-page judgment acquitting a man convicted under Section 376 read with Section 3(1)(xii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 by the trial court. The accused had been sentenced to 7 years in jail by the trial court.

Case Background

The complainant was working as a dealer in a casino in Goa while the accused was working as a chef in the same casino. They met and developed a relationship. The accused then expressed a desire to marry the complainant but she apprised him of the fact that she belonged to a Scheduled Caste and asked him to rethink.

The relationship continued and according to the complainant, one night they went to the accused’s home and he wanted to have sexual intercourse but she said she was not ready as they were not married yet but the accused convinced her by saying that he would marry her.

According to the complainant, there were 3-4 more such instances where the two had intercourse in the accused’s house. But the accused told her in February of 2014 that his mother would not approve of their relationship as she belonged to Scheduled Caste. This irked the complainant, who then told the accused’s mother about their relationship. The accused’s mother asked for some time to think about it, but after getting no response, the complaint was filed in March 2014.

Final Judgment

The trial judge found that the appellant had sexual intercourse with the complainant without her consent since the consent was obtained on the basis of 'a misrepresentation of fact', as he promised to marry her. He also found that the accused being in a position to dominate the will of the complainant, who belonged to Scheduled Caste, used her physically and exploited her sexually, which she otherwise, would not have agreed to.

After hearing the submissions of the prosecution as well as on behalf of the appellant-accused, the court noted how the complainant had attained the age of consent when they first had intercourse. Pointing out that both parties had intercourse on multiple occasions and the complainant provided the accused with financial help, the court said-

“It can thus be clearly seen that there was a love affair between the appellant and PW-1 and there was a clear consent, on the basis of which, the appellant and PW-1 had physical relationship. The only question is whether, such a consent can be said to be on misconception of fact as to the promise of marriage by the appellant. 18.”

For this question, the court referred to the judgments of the Supreme Court in Deepak Gulati Vs. State of Haryana, (2013) and Uday Vs. State of Karnataka, AIR 2003.

Under Section 114 A of the Evidence Act 1872, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.

Weighing the decisions in both these cases and examining the facts and circumstances in the present case, the court said-

“It is evident that PW-1 not only continued with the relationship with the appellant after the first incident, but, also went to the extent of withdrawing the complaint by filing an affidavit in which, she has stated that she could not see the appellant behind bars, who was then under depression and was undergoing treatment at IPHB hospital, Bambolim and was desirous of withdrawing the complaint due to her personal reasons and emotions. This would clearly show that there was deep love affair between the appellant and PW-1. It cannot be said that the consent given by PW-1 was on account of any promise of marriage made by the appellant.

The presumption under Section 114-A of the Evidence Act cannot take the case of the prosecution any further. It is true that the said presumption is a statutory presumption and the Court is obliged to draw such presumption, provided the foundational facts are established. However, the fact remains that such presumption is a rebuttable presumption. The accused can rebut such presumption on the basis of the evidence led by the prosecution and the attending circumstances, which have come on record.”

The court also found that the complainant had not included allegations under SC and ST Act in her original complaint but later in her supplementary statement. Also, the Investigating Officer was not given the mandatory authorization to investigate the offence.

Thus, the court finally allowed the accused’s appeal and acquitted him of all charges.