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Bombay HC “Consent induced by fiduciary relationship not a free consent” Rape accused Bail Dismissed

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Bombay High Court in a bail matter of rape with minor girl observed. “Rape” is just not a forcible intercourse, it means to inhabit and destroy everything.

Incident- A minor victim girl registered a complaint based on which offences for Sections 376, 354-D, 506 of Penal Code, 1860 were invoked against the applicant. Since the complaint was registered by a minor, provisions of Sections 3, 4, 11 and 12 of the Protection of Children from the Sexual Offences Act, 2012 were also invoked.

Victim who was acquainted with the applicant who was a business partner of the victim’s father. Victim submitted to the court that from the month of October, 2019, the applicant started texting her on her Whatsapp and expressed his liking towards her and also sought sexual favours from her, which was turned down by the victim girl.

Accused sent a message to the victim stating that he wanted to discuss an important family matter with her and asked her to meet the next day. Next day, when she was waiting for a bus to arrive the applicant approached her on a two-wheeler and she was asked to accompany him.

Victim was then taken to a nearby farmhouse and by making an emotional appeal and threatening that she if did not agree, he will commit suicide, she was forced to commit sexual intercourse with him. Victim threatened that she should not disclose the incident to her parents and if she does so, it would adversely affect the partnership business.

Again after the above incident, the applicant forced the victim in a similar manner and indulged with her physically. After a few days of the second incident, the victim disclosed it to her parents and after due deliberation, the report was lodged.

Bombay High Court Bench stated that it is not very unlikely that a young girl aged 17 years became disquieted after the act of ravage and did not gather the courage to speak to her parents about the incident.

The whole episode of the applicant indulging with a minor girl, a daughter of his business partner itself speak of his intention.  

High Court observed that the applicant took advantage of the fiduciary relationship, which he shared with the victim girl and put her in a vulnerable situation. Assuming but not accepting that the victim girl consented for maintaining the physical relationship, her consent is not free consent.

Further, adding to the above, penal code does not recognise the consent by a minor girl to be consent in the eyes of law and in the present case, in the backdrop of narration by the victim, her consent can naturally be said to be induced by a fiduciary relationship which she shared and on that count also, it is not free consent.

The consent of the victim girl under 18 years of age cannot be treated as a valid consent and is also of no legal consequences when it comes to an offence of rape punishable under Section 376 IPC.  

High Court- “Offence of rape as defined in Section 375 of the IPC, made punishable under Section 376, is attracted when a man commits an act of rape without the consent of the girl or when such consent is obtained by putting her in fear of death or of hurt. The hurt may be physical or mental.”