While complainants of sexual assault cases are entitled to fair trial, the responsibility of the criminal justice system towards protecting rights of the accused cannot be ignored, according to the Delhi High Court which upheld an order discharging a man for allegedly raping a woman for 12 years.
The high court said in cases of rape and sexual violence, conceptualisation of definition of sexual consent is of utmost importance and the issue of “consent” merits close scrutiny for analysis of sexual assault offences.
“The courts have to ensure that the right of fair trial to the complainant and rights of the accused of being protected from mala fide trial are taken care of in the court’s crucial endeavour to ensure equality before law,” Justice Swarana Kanta Sharma said in the order.
The high court’s verdict came while upholding a trial court’s June 2018 order discharging the man under Sections 376 (punishment for sexual assault) and 506 (punishment for criminal intimidation) of the Indian Penal Code.
While the woman alleged she was repeatedly raped by the man from 2005 to 2017, the FIR was lodged by her in 2017 at Sarai Rohilla Police Station here.
The high court said, “In cases of rape, sexual violence and effective enforcement of sexual assault laws, conceptualisation of definition of sexual consent is of utmost importance so that the delicate balance between rape and consensual sex is fairly arrived at in such complaints and cases. The issue of consent, thus, merits close scrutiny for analysis of sexual assault offences.”
According to the prosecution, the woman met the accused in a train in 2005 and became friends and he started visiting her house. In November 2005, the man offered her juice after consuming which she became unconscious and when regained consciousness, she realised that he had established physical relations with her.
Thereafter, he threatened to defame her and showed her some obscene photographs and compelled her to establish physical relations till 2017, it alleged.
The woman disclosed the alleged incidents to her husband in 2017 and lodged an FIR with the police.
The man and the woman were married to their respective spouses.
In her statement recorded before a magistrate, the woman stated that she bore two children who were fathered by the accused and a DNA test also confirmed this.
The high court held it cannot be said even prima facie, by any stretch of imagination, that the woman had given her consent for sexual relationship with the accused under any misconception of fact or any fear of injury, to even hold that a prima facie case is made out within the meaning of Section 375 (rape) of IPC for framing charge against him.
“In the changing social context and contemporary society, rigorous thinking was required while passing this judgment to strike a balance between the configuration of the rights of the accused against false implication due to their long consensual relationship which continued for 12 years and right of the complainant to fair trial.
“While there can be no denying that the complainants in sexual assault cases are entitled to fair trial, the responsibility of the criminal justice system towards protecting rights of the accused also cannot be ignored,” it said.
It added that the court’s duty in such circumstances still has to ensure that a balance is maintained between the settled law of sexual assault while keeping in mind the equality standards of the complainant and the accused.
The court said even prima facie it was difficult to construe the allegations levelled by the woman to be covered under the definition of rape as she being a legally wedded wife of another partner, had sufficient maturity and intelligence to understand the significance and outcome of the acts she was indulging in and was consenting to including its moral aspect.
“The facts as revealed clearly portrayed that while on the one hand, she had committed betrayal of faith and sanctity of marriage qua her husband by begetting two children from another man who was legally wedded to another partner, the accused himself was also betraying his own legally wedded partner,” it said.
The court said the facts of this case point out to specific interpersonal relationship where both the parties exercised their right of sexual self-determination.
“No doubt, in cases of rape depending on facts from case to case, consent cannot be said to be inferred or proved by passivity or silence alone from the complainant. However, continuous consent, as in the present, without any whisper of complaint assists the court in consent analysis,” it said.
The court, however, clarified that since it was dealing with a case based on peculiar facts, that involves question as to whether there was a voluntary agreement and affirmative ‘yes’ to engage in sexual activities or not, this court is testing the applicability of laws in the context of this particular case in its peculiar circumstances and is not laying down any law regarding consent for every rape case.