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Need To Scrutinise Consent In Sexual Assault Cases, Says Delhi High Court

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New Delhi:

Complainants of sexual assault cases are entitled to a fair trial, but the responsibility of the criminal justice system towards protecting rights of the accused cannot be ignored, the Delhi High Court said on Tuesday while upholding an order discharging a man accused of raping a woman for 12 years.

The court said in cases of rape and sexual violence, conceptualisation of definition of “consent” is of utmost importance and the issue merits close scrutiny.

“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 court upheld a trial court’s order of June 2018, discharging the man under Sections 376 (punishment for sexual assault) and 506 (punishment for criminal intimidation) of the Indian Penal Code.

In the First Information Report filed in 2017, the woman alleged she was repeatedly raped by the man since 2005. Both were married to different people at the time. The woman claimed she had two children, who were fathered by the man and this was proved by DNA tests.

The prosecution claimed the woman met him in a train in 2005. They became friends and he started visiting her house. In November that year, the man spiked her fruit juice and raped her. He later blackmailed her with obscene photos and forced her to continue the relationship. The woman claimed that she disclosed the situation to her husband in 2017 and lodged a complaint with the police.

The court held that it cannot be said by any stretch of imagination, that the woman had given her consent to the sexual relationship under any misconception of facts or fear of injury.

Prima facie, it was difficult to construe the woman’s allegations to be covered under the definition of rape as she was married to another man and had sufficient maturity and intelligence to understand the significance and outcome of her acts, 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, the court said.

“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,” the court said.

The court’s duty in such circumstances is 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 judge said.

“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.