Past sexual experience not relevant to consent, says Delhi Court in Rape Case

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A Delhi court has dismissed the anticipatory bail application of 28-year-old Mumbai-based journalist Varun Hiremath, accused in a rape case, observing that consent cannot be implied from a victim’s previous sexual experiences with the accused.

The order was passed by Additional Sessions Judge Sanjay Khanagwal (fast track courts), Patiala House Court on March 12. In his order, the judge wrote, “Although WhatsApp and Instagram chats has not been specifically denied from the side of the prosecution but despite the fact that accused and prosecutrix were having loving relationship and they were being indulged in sexual explicit talks that also not going to make any difference at this stage in view of section 53-(a) of Indian Evidence Act which provides that evidence of character or previous sexual experiences not relevant in certain cases including the offence under section 376 and this provision specifically shows that previous sexual experiences with any person shall not be relevant on the issue of such consent or quality of consent (sic).”

“Therefore, from her previous experiences with the accused the consent cannot be implied. This observation is also found support from Section 114 A Indian Evidence Act which deals with the presumption as to the absence of consent of certain cases for the rape and if sexual intercourse by the accused is proved,” the order read.

The woman in her complaint and her statement before the magistrate has alleged she was raped by Hiremath, a journalist with ET Now, at a five-star hotel in Chanakyapuri on February 20.

On the basis of woman’s complaint, an FIR under IPC sections 376 (punishment of offence of rape), 342 (punishment for wrongful confinement) and 509 (word, gesture or act intended to insult the modesty of a woman) was registered at Chanakyapuri police station.

The court said that as far as the question of consent or no consent is concerned, the woman stated in her evidence before the court that she did not consent, hence “the court shall presume that she did not consent.”

The court also said the contradictions pointed out by the defence counsel are “not material” and “not sufficient to disbelieve the version of the prosecutrix.” The probe officer told the court they needed to conduct custodial interrogation of the accused.

Advocate Sandeep Kapur, the lawyer for the accused, argued that he has been “falsely implicated” and “whatever had happened on the day of offence was consensual and even prosecutrix who is coming from Pune to Delhi to meet the accused and thereafter joining him in the hotel in a double occupancy room where she herself had given her identity documents are sufficient to show that she herself was interested in going into the hotel room for the purpose of sexual relationship with the accused.”

The counsel for the complainant, Jai Anant Dehadrai, Sidharth Arora and Ashna Chhabra, submitted that she was “not willing for any sexual indulgence with the accused. When they were passing through the lobby of the hotel room, even at that time the prosecutrix has denied the offer of the accused, merely going into the room of the hotel with the accused does not show her intention to indulge in sexual activities with him.”

The court noted: “In her complaint as well as in her statement, she has stated that she was feared of injury if she attempted to escape the room. Therefore, she bow down to the forcible demands of the accused. She has also stated that she always resisted the act of accused…”

It also noted that “in order to support the version of the prosecutrix the IO has shown some WhatsApp chats of accused and prosecutrix after commission of offence… same are indicating towards the feeling of sorry by the accused of his acts.”

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