No presumption of absence of consent if sexual intercourse not proved, Delhi High Court

The Delhi High Court has held that the presumption of absence of consent in certain types of rape cases under Section 114A of the Indian Evidence Act, 1872 is attracted only if sexual intercourse is proved.

. The judgment was passed by a Division Bench of Justices Manmohan and Sangita Dhingra Sehgal in an appeal from a trial court order acquitting a person accused of charges under Sections 328, 376(2)(n), 343, 506 of the Indian Penal Code, 1860 .

. As per the statement of the prosecutrix, she came into contact with the accused through Linkedin for the purpose of her research work. She alleged that she was raped by the accused in a hotel room in Delhi.

. It was the appellant’s case that the trial court had failed to appreciate that there was a presumption under Section 114A of the Indian Evidence Act with respect to the absence of consent in certain types of rape cases under the IPC.

. Consequently, it was contended that the onus to prove that he had not committed the offence under Section 376(2)(n) IPC had shifted to the accused.

. After perusing the record of the case, the Court concluded that the statement of the appellant was highly unreliable and inspired no confidence.

. The Court observed that at the time of booking the hotel room where the alleged incident took place, the appellant was comfortable with the accused and even produced her identity proof at the time of the booking.

. It was further observed that even when the accused and appellant came out of the hotel, they both took an auto together and went to Shivaji Stadium Metro Station and from there took the metro and reached Aerocity Metro Station. Thereafter, the accused took his flight and the appellant went to her home at Dwarka after seeing him off.

. She, however, did not make any phone call to any friend or relative or to anyone else with respect to the alleged incident of rape on that day, the Court stated.

. The Court also opined that the appellant’s version that she could not make any call to the police or any other person because the accused had taken away her phone, was unbelievable. It was noted that as per the appellant’s own testimony in Court, her phone was returned by the accused before leaving.

. Although the appellant made 529 calls to the accused from her mobile number during the days following the alleged incident, she maintained that she did not remember her own mobile number or her landline number, it was noted.

. Considering that she was the daughter of a retired commandant from CRPF and a highly educated person, her conduct was unbelievable, the Court said.

. Furthermore, the Court recorded that during their stay in the hotel, no alarm was raised by the appellant and a complaint was made only after 32 days without any explanation for the delay. Also, there was no evidence to support the appellant’s claim that she was intoxicated by the accused.

. The Court lastly recorded that it was “noteworthy” that the appellant had refused internal medical examination in the case.

. Thus, keeping in view the cumulative findings, the Court concluded that the testimony of the appellant was unreliable and inspired no confidence.

. It further added that Section 114A of the Evidence Act would not be attracted if the factum of sexual intercourse was not proved.

. “There were various lacunae in the case of the prosecution and the benefit of doubt would have to enure to the benefit of the accused”, the judgment states.

. Therefore, the appeal was dismissed for being bereft of merits.

. The appellant was represented by Advocates Simran Sadyora and Sanjeev Bhatia .

. The State was represented by Advocate Aashaa Tiwari .

. Read the Judgment:

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No presumption of absence of consent if sexual intercourse not proved, Delhi High Court

Aditi Singh

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