Even If Consent Is Presumed Willingness Was Absent As Per Minor's Medical Examination: Allahabad HC Denies Bail To Rape Accused

It may be noted that sexual intercourse under 7 circumstances falling under Section 375 Of IPC can constitute rape and such circumstances are independent of each other, meaning thereby, even if one of the seven conditions is met, an act may amount to rape.

Against this backdrop, noting that the phrase 'Against her will' and 'Without her consent' appear in different circumstances listed under Section 375 Of IPC, Justice Krishan Pahal observed thus:

"18. It is not without reason that both phrases are put separately in the definition of rape. Consent can be obtained by putting someone in fear or under pressure or by persuasive influence or other more subtle methods… 19. It is not without reason that the word 'consent' is prefixed with 'without' and the word 'willingness' is prefixed with 'against."

The case in brief

The Court was dealing with the bail plea of a man (Pushpendra Chauhan) who has been booked under sections 376D of IPC and 5/6 of the Protection of Children from Sexual Offences Act, 2012 for allegedly raping a 17-year-old girl.

As per the prosecution's case, the victim was in touch with the applicant through mobile chatting. On January 17, 2020, the victim was enticed away by the accused on the pretext of giving her some gifts on the promise that they shall return within a period of one hour.

He took her to a room and raped her and thereafter, the co-accused, Jaiveer Chauhan and Kovind Chauhan and another unknown person also committed rape with her and later on, threatened her to kill her father and brother if she ever revealed their identity to anyone.

Somehow the victim contacted her father and also dialled 100 number to the police whereupon the police retrieved her and registered a case against the accused persons and arrested them, however, at the time of submitting the final report (charge sheet), the Investigating Officer exonerated the co-accused persons.

The accused moved to the HC seeking bail arguing that the victim is a consenting party and that as per the FIR itself, the victim had called the police in the morning and she was retrieved by the police. It was further argued that the police had recovered two condom packets from the place of occurrence at the instance of the victim which indicates that the said act committed, if any, was with the consent of the victim.

High Court's observations

At the outset, the Court noted that though, in the final report, the conversations between the applicant and the victim indicated proximity between the two, however, the final report had been filed owing to the age of the victim falling below 18 years, the legal age of the consent.

In view of this, the Court observed that the age of the victim is just above 17 years, thus, the consent, if any, pales into insignificance.

In addition to it, the Court further opined that even if consent is presumed, willingness was absent as indicated by the medical examination report of the victim.

"The nature, the seat of injury just deflates the claim of defence that it was not rape… The act was resisted by her is too obvious by the medical report and that brings the act within the definition of rape as it was against her will," the Court remarked as it stressed that the Courts are under a duty to deal with cases of such nature with utmost responsibility and sensitivity.

Further underscoring that it is impudent to look for expression of willingness or unwillingness, the Court, considering the rival submissions adduced by the counsel for the parties, the facts of the case, the evidence adduced and also considering the nature of offence, did not find it a fit case for granting bail to the applicant.

Accordingly, the application was found devoid of merits and was dismissed.

Case title - Pushpendra Chauhan vs. State of UP [CRIMINAL MISC. BAIL APPLICATION No. - 27563 of 2020]

Case Citation: 2022 LiveLaw (AB) 519

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