It does not amount to rape if consent was voluntary: HC

Acquitting a rape convict, the Bombay high court has held that it would not amount to rape if the consent of the girl in a sexual relationship with her partner was voluntary.

Hearing an appeal filed by 39-year-old Manesh Kotiyan, Justice Sadhana Jadhav acquitted him of the rape charges three years after he was arrested for the alleged offence. The court set aside the 7 years RI awarded to Kotiyan on rape charge

"The complainant here is an educated adult person. The appellant had proposed to her. She was fully aware of the fact that he was attracted to her. She chose to go with him and checked into a hotel to celebrate his birthday. She was aware of the consequences. She had not cried for help and had not taken her resistance to a logical end," the judge said.

"Hence, it would not be justifiable to hold that the consent was obtained by intimidation, force meditated imposition, circumvention surprise or undue influence. Hence, the conviction of appellant for offence punishable under Section 376 of the Indian Penal Code would not be sustainable," observed Justice Jadhav in a recent order.

The very fact that the prosecutrix has admitted in the cross-examination that she had a love affair with the accused and she desired to marry him. In these circumstances, offence under Section 376 of the Indian Penal Code would necessarily fail", the judge further observed.

"It cannot be said that the accused had committed sexual intercourse at false promise of marriage. He was willing to marry her. The impediment was the proceedings filed by the first wife of the appellant. Even according to the complainant, the appellant had assured her that he would get married to her after obtaining divorce from his first wife."

The prosecutrix had not even informed her mother that she was carrying pregnancy for a period of 4 months. She had given birth to a female child in August 2010. The first information report was  lodged on March 27, 2010 and the appellant was taken into custody since then. It cannot be said that he had at any point of time disowned the paternity of the child, the court noted.

However, the judge upheld his one year sentence under section 417 IPC for cheating the girl as he had not disclosed to her that he was already married and facing divorce proceedings in court.

"It appears from the deposition of the complainant that the appellant had not disclosed to the complainant at the outset that he was a married man and father of one son and further that his first wife had filed proceedings against him in a court. This suppression of fact would amount to cheating," the court held. The appellant and the girl were working in a stationary shop in suburban Borivali. Both of them quit the job and started working in a Xerox shop. One day, the appellant proposed to marry her and she accepted the offer.

Their acquaintance had turned into intimacy. On November 5, 2009, the appellant had invited her informing that it was his birthday. She went to meet him at a bus stop. Then  they both went to Gorai beach and checked into a hotel.

The appellant told her he wanted to marry her and on that ground he solicited sexual favours from the girl. Initially when she refused to oblige, he forced her and had forcible sexual intercourse with her. Thereafter, they did not see each other for 2-3 days.

The appellant had been to Mangalore for one month. The girl tried to contact him on his cell phone. His brother received the phone. The victim learnt from his brother that the appellant was a married man and was having a son. However, the wife and son of the appellant were not staying with him.

According to prosecution, one day, the appellant called her to Borivali railway station. She was accompanied by her mother. The appellant admitted that he was married and has a son. He sought pardon from the mother and daughter. He informed them that his wife had filed proceedings in the court against him.

On March 8, 2010, the girl suspected that she had conceived and therefore, visited the doctor. After medical check up, the doctor informed her she was 16-week pregnant. She informed the appellant about this and he told her that he would obtain divorce from his wife after three months and then he would marry her.

The complainant alleged he had avoided to marry her. He had not answered her call and therefore, on March 27, 2010, she went to police station and lodged the report against him following which he was arrested.