Uttaranchal High Court: Ravindra Maithani, J. allowed an appeal against an order of the Trial Court which convicted a man of raping a girl and thereby ordered that the man be released from jail forthwith.
The facts stated by the prosecution were that the prosecutrix left her house to get some goods from the market but did not return. She returned on the next day. She told that the appellant, accompanied by the co-accused Rajat enticed her in Scooty. The appellant then took her to his Aunt’s house. He made her drink beer and, in the night, forcibly raped her and threatened her to life if she reveals it to anyone. A case was registered under the POCSO Act, 2012 and under Sections 363, 376 and 506 IPC. Upon further investigation, age of the prosecutrix was ascertained to be above 18 years and the complaint under the POCSO Act, 2012 was dropped.
In order to establish the offence, it must be proved that the act was done without the ‘consent’ of the prosecutrix. The Court referred to the case of Satpal Singh v. State of Haryana, (2010) 8 SCC 714, which stated-
“30. An act of helplessness in the face of inevitable compulsions is not consent in law. More so, it is not necessary that there should be actual use of force. A threat of use of force is sufficient.”
Also, it is well laid down that where the sexual intercourse by the accused is proved and the woman states before the court that she did not consent, the court shall presume that the woman did not consent.
However, the Court opined that conviction cannot be based on the statement of the prosecutrix alone unless it qualifies the parameters of reliability, credibility and truthfulness.
The Court noted the following points to come to the conclusion that the prosecutrix gave her consent to the act:
- At the first instance, why did the prosecutrix joined the company of the appellant and Rajat. If Rajat wanted to speak to her and she was not willing for it, she would have simply denied it.
- According to the prosecutrix, she was in the market. She was not all alone. Instead of Rajat raising alarm, why the prosecutrix did not raise alarm? Why did she join the appellant and the co-accused? In her cross examination, the prosecutrix has categorically stated that she did not raise any alarm.
- In her statement, the prosecutrix categorically tells that on mutual consent she had gone Pauri. She also bought a beer for herself on the way. It means she was not forced to go to Pauri by the appellant.
- The room in which the prosecutrix was sleeping in was bolted in from the inside. The appellant called her 2:30 in the night. But she did not inform about it to anyone instead she silently unbolted the door and sneaked into the kitchen suggesting that she was a consenting party. This belies her statement that she was raped forcefully.
- In her statement, she told that after the incident, she slept quietly. She did not tell about it to anyone in the house she was staying on the next day also.
In view of the above arguments, the Court was of the view that the prosecution could not establish the offence under Section 375 IPC since the act was with the free and voluntary consent of the prosecutrix. The Court further ordered that the appellant be released from jail. [Sanjay Semwal v. State of Uttarakhand, Criminal Appeal No. 265 of 2021, decided on 11-11-2021]
Advocates before the Court:
For Appellant: Mr V.B.S. Negi, Senior Advocate, assisted by Ms Prabha Naithani
For State: Mr Lalit Miglani, A.G.A.
