No rape case made out in consensual sexual intercourse and absence of...

No rape case made out in consensual sexual intercourse and absence of marriage promises: SC

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The Supreme Court of India in the case of Tilak Raj v. State of Himachal Pradesh comprising a bench of the Hon’ble Chief Justice of India T.S. Thakur and Hon’ble Mr. Justice V. Gopala Gowda has held on Wednesday 6th January 2016 that an offence of rape would not be made out when the sexual intercourse between the accused and the prosecutrix was consensual and was not with the false promise of marriage.

The facts of the instant case are that the accused and the prosecutrix were in a relationship for a period of two years. The age of the prosecutrix at the time of the alleged rape was approximately 40 years, 10 years more than that of the accused-appellant. She was a government servant and was at many instances appointed as a protection officer under the Protection of Women from Domestic Violence Act, 2005. On 5/1/2010 the prosecutrix had alleged in her complaint that on 1/1/2010 the accused had raped her and physically assaulted her. She was also threatened by the accused of dire consequences if she went and reported the incident to the police. Later, when she went and reported the matter to the police, she stated in her complaint that the accused had promised to marry her and had made a complaint with the police that the accused had sexually exploited her on the pretext of marriage.

The Court of sessions had acquitted the accused of all the charges that were levied against him. The state then preferred an appeal before the High Court. The High Court upheld the order of the Sessions Court regarding the offence under Section 376 IPC but convicted the accused under sections 417 and 506 of IPC. The High Court did not impose any sentence on the accused but set him free on a bond of Rs. 25,000/- with two local sureties.

In the instant case before the Supreme Court, the Supreme Court had observed that during the examination of the prosecutrix in the trial court, the prosecutrix had accepted that for the last two years the two were in a relationship and that the accused-appellant used to stay overnight in the house of the prosecutrix. The Supreme Court observed that,

“19. …. After a perusal of copy of FIR and evidence on record the case set up by the prosecutrix seems to be highly unrealistic and unbelievable.”

The Supreme Court further quoted the Trial Court and stated that the offence of rape cannot be made out in this case because the story of the prosecution side is a concocted story and that there was no promise of marriage made out in their relationship and this is a case of consensual sexual intercourse between the accused and the prosecutrix.

Quoting the Supreme Court of India,

“20. ….The trial court has rightly held thus:

“23. If the story set up by the prosecutrix herself in the court is to be believed, it does come to the fore that the two were in a relationship and she well knew that the accused was duping her throughout. Per the prosecutrix, she had not succumbed to the proposal of the accused. Having allowed access to the accused to her residential quarter, so much so, even having allowed him to stay overnight, she knew the likely outcome of her reaction. Seeing the age of the prosecutrix which is around 40 years, it can be easily inferred that she knew what could be the consequences of allowing a male friend into her bed room at night.

24. The entire circumstances discussed above and which have come to the fore from the testimony of none else but the prosecutrix, it cannot be said that the sexual intercourse was without her consent. The act seems to be consensual in nature.

25. It is also not the case that the consent had been given by the prosecutrix believing the accused’s promise to marry her. For, her testimony itself shows that the entire story of marriage has unfolded after 05.01.2010 when the accused was stated to have been summoned to the office of the Dy. S.P. Prior to 05.01.2010, there is nothing on record to show that the accused had been pestering the prosecutrix for any alliance. The prosecutrix has said a line in her examination-in-chief, but her cross-examination shows that no doubt the two were in relationship, but the question of marriage apparently had not been deliberated upon by any of the two. After the sexual contact, come talk about marriage had cropped up between the two. Thus, it also cannot be said that the consent for sexual intercourse had been given by the prosecutrix under some misconception of marriage.””

The Supreme Court further discussed in detailed the provisions of Sections 417 and 506 IPC and even quashed the conviction of the accused-appellant by the High Court and the accused-appellant was thus acquitted of all the charged that were made against him.

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