THE PUNJAB and Haryana High Court, while dismissing the bail plea of an accused in a rape case, contending that it was a consensual relationship, said: “Even on the assumption that if two persons previously had consensual sexual relationship for any reason whatsoever, the consent of prior sexual acts will not extend to future occasions.”
The petitioner (accused), who has been booked in an FIR under sections of rape, trespassing and criminal intimidation of IPC at PS Sector 40, Gurugram, has contended through his counsel that there was a delay of 48 days in lodging the FIR, the complainant is a 35-year-old divorcee, and the case has been registered with an “oblique motive of extortion out of failed love affair”. The petitioner further said that both he and complainant are majors, they were in a live-in relationship, which is also made out from the photographs placed on record, and the relationship between them was consensual.
The state counsel, opposing the bail plea, contended that serious allegations of forcible sexual intercourse have been leveled against the petitioner, the petitioner has only undergone custody of two months and nine days, the challan has been presented, but the statement of the prosecutrix is yet to be recorded and it will be too early to conclude that there was consensual relationship between the parties.
The bench of Justice Vivek Puri, after hearing the matter, held that it may not be appropriate to disbelieve the version of the prosecution at this stage on the score that there is a delay of 48 days in lodging the FIR. There is categoric mention in the FIR that the complainant was frightened, under mental stress and the petitioner had also been apologetic for his acts. As such, it cannot be accepted at this stage that a false case has been foisted upon the petitioner as a result of afterthought.
On the contention of the petitioner that it is a case of consensual relationship and alleged that he was in a live-in relationship with the complainant, Justice Puri said, “It may be true that the law acknowledges live-in relationship, but at the same time, it has also to be borne in mind that the law also acknowledges a woman’s right to have a sexual relationship. The crime of rape consists of committing sexual act without consent or against the will of a person. Even on the assumption that if two persons previously had consensual sexual relationship for any reason whatsoever, the consent of prior sexual acts will not extend to future occasions. It cannot be construed as a circumstance to conclude that the accused gets a right to perpetually exploit the prosecutrix. The withdrawal of consent effectively nullifies the earlier consent and forcibly sexual intercourse becomes non-consensual, attracting the penal provisions of section 376 IPC.”
The bench held that the photographs may indicate that the prosecutrix was known to the petitioner, but it cannot be prima facie concluded that the prosecutrix had been a consenting party.
Justice Puri further said that although there are observations in the MLR of the prosecutrix that she was in a consensual relationship with the petitioner for the past one year, it has also been mentioned that on 05.07.2021, she was physically assaulted and sexually abused. Moreover, the consensual relationship at earlier point of time becomes insignificant in view of the observations which have already been recorded here-in-above, the judge added.
While declining the concession of bail, Justice Puri added that in the impugned order that it is necessary that free and fair atmosphere should be given to the prosecutrix to depose in the court. The possibility of an attempt on the part of the petitioner to win over or influence the prosecutrix cannot be ruled out.
Thus, considering the nature and gravity of allegations, stage of trial and period of incarceration, the bench held that no ground is made out to extend the concession of regular bail to the petitioner.
