Court says sexual history with attacker not relevant to consent

Sexual consent cannot be implied from a rape victim’s previous relationship with the accused, a court in Delhi has said.

Additional Sessions Judge Sanjay Khanagwal (fast track courts), Patiala House Court, made the observation before dismissing the anticipatory bail application of 28-year-old Mumbai-based journalist Varun Hiremath, accused in a rape case, on March 12.

“Although WhatsApp and Instagram chats have not been specifically denied from the side of the prosecution, but despite the fact that accused and prosecutrix [a female victim of a crime on whose behalf the state is prosecuting a suspect] 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 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 [sic],” the order read.

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

On the basis of the complaint, an FIR under 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) of the Indian Penal Code was registered at the Chanakyapuri police station.

The court said that the victim had denied giving consent, hence “the court shall presume that she did not consent”.

It also said the contradictions pointed out by the defence counsel are “not material” and “not sufficient to disbelieve the version of the prosecutrix”.

The investigating officer told the court he needed to conduct custodial interrogation of the accused.

Advocate Sandeep Kapur, the lawyer for the accused, argued that he has been “falsely implicated”. “Whatever 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 [sic],” he said.

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”.

Hiremath has been absconding since the survivor filed the police complaint. The Bombay High Court had previously rejected his anticipatory bail application.