Bom HC | “Consent induced by fiduciary relationship not a free consent”: Bom HC while refusing bail to rape accused business partner of victim’s father

Bombay High Court: Bharati Dangre, J., while addressing a petition with regard to the rape of a minor girl, made an observation that:

“Rape” is just not a forcible intercourse, it means to inhabit and destroy everything.

A minor victim girl registered a complaint based on which offences for Sections 376, 354-D, 506 of Penal Code, 1860 were invoked against the applicant.

Since the complaint was registered by a minor, provisions of Sections 3, 4, 11 and 12 of the Protection of Children from the Sexual Offences Act, 2012 were also invoked.

Victim who was acquainted with the applicant who was a business partner of the victim’s father.

She alleged that from the month of October, 2019, the applicant started texting her on her Whatsapp and expressed his liking towards her and also sought sexual favours from her, which was turned down by the victim girl.

Applicant sent a message to the victim stating that he wanted to discuss an important family matter with her and asked her to meet the next day. Next day, when she was waiting for a bus to arrive the applicant approached her on a two-wheeler and she was asked to accompany him.

She was then taken to a nearby farmhouse and by making an emotional appeal and threatening that she if did not agree, he will commit suicide, she was forced to commit sexual intercourse with him. She was also threatened that she should not disclose the incident to her parents and if she does so, it would adversely affect the partnership business.

Again after the above incident, the applicant forced the victim in a similar manner and indulged with her physically.

After a few days of the second incident, the victim disclosed it to her parents and after due deliberation, the report was lodged.

Bench on perusal of the above stated that it is not very unlikely that a young girl aged 17 years became disquieted after the act of ravage and did not gather the courage to speak to her parents about the said incident.

The victim girl was also conscious of the fact that the applicant was a business partner of her father.

The whole episode of the applicant indulging with a minor girl, a daughter of his business partner itself speak of his intention.

FIDUCIARY RELATIONSHIP

Court further observed that the applicant took advantage of the fiduciary relationship, which he shared with the victim girl and put her in a vulnerable situation.

CONSENT

Assuming but not accepting that the victim girl consented for maintaining the physical relationship, her consent is not free consent.

Further, adding to the above, penal code does not recognise the consent by a minor girl to be consent in the eyes of law and in the present case, in the backdrop of narration by the victim, her consent can naturally be said to be induced by a fiduciary relationship which she shared and on that count also, it is not free consent.

“Offence of rape as defined in Section 375 of the IPC, made punishable under Section 376, is attracted when a man commits an act of rape without the consent of the girl or when such consent is obtained by putting her in fear of death or of hurt. The hurt may be physical or mental.”

The consent of the victim girl under 18 years of age is also of no legal consequences when it comes to an offence of rape punishable under Section 376 IPC.

In view of the above observations, High Court did not release the applicant on bail and rejected the bail application. [Amit Raosao Patil v. State of Maharashtra, Bail Application No. 1813 of 2020, decided on 09-09-2020]

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