The Bombay High Court has held that when rape is defined under Section 375 of the Indian Penal Code, the term “without her consent” has a wider meaning and covers a broader area of her wish to have sexual intercourse.
It observed: “In the case of rape, intoxication cannot be an excuse. If a girl is intoxicated, it means mentally she is not capable to give a free and conscious consent. In a case of rape, when a woman says “No” for sexual intercourse, it means she is not willing; similarly when she says “Yes”, it should be free and conscious “Yes". Not every “Yes” is covered under the valid consent.”
Justice Mridula Bhatkar was hearing bail applications filed by three youngsters from Pune, who have been accused under charges of gangrape, kidnapping and abduction of a 24-year-old woman.
It is the victim’s case that she was working as a technical support associate in Pune, where the main accused, Abhinaya Sahi, was also working. She was friendly with him and on the day of a company gathering, they decided to go to a bar. After this, she said she woke up and found herself at an apartment where she found Abhinaya laughing with his four-five friends, including a girl.
She experienced severe pain and asked the accused if he had sexually assaulted her, and he replied that she was gangraped. The girl later told her father and brother about the incident, who filed the complaint.
Counsel for the accused, Aabad Ponda argued that the victim voluntarily consumed alcohol along with the accused and hence, was intoxicated.
He said “young people who are financially independent, they often have free interaction. They drink together and sometimes also take sexual liberty and intercourse is consensual.”
He submitted that the victim must have lied due to fear of her father and “cooked-up a story of gangrape”.
Additional Public Prosecutor Arafan Sait submitted that the accused had prior intention of getting the victim to his house, as he had mentioned it in a WhatsApp message to other accused. He further submitted that it is a case of gang rape under Section 376D and the Section has been amended after Nirbhaya's case to control such incidents.
Justice Bhatkar acknowledged that in the case of rape, difficulties faced by the victim have to be taken into account. She said: “Considering the social norms and culture of the family, the victim might not have disclosed that she had drinks on that evening and therefore, she might have lied to that extent to her father to save herself but it does not mean at this stage that whatever she has stated is a complete lie. Prima facie considering her post-rape conduct and physical condition, it appears that she did not want to have sexual intercourse and if at all she had consented to it, the said consent was not valid.”
Although the court rejected the main accused’s bail application, it was held that there is no prima facie evidence against the other two accused, only a statement by the victim that the main accused had stated that others were also involved. Hence, bail was granted to the other two accused.
Read the order here.
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