While most commendably not hesitating at all whatsoever in attaching paramount importance to the dignity, consent and well being of women, it is certainly most refreshing, most reinvigorating and so also most reassuring to note that none other than one of the oldest and so also no doubt one of the most reputed and magnanimous High Court in India and so also having maximum High Court Benches among all the States in India that is the Bombay High Court whose Bench at Goa in a most learned, laudable, landmark, logical and latest judgment titled State Through Canacona Police Station Vs Gulsher Ahmed in Criminal Revision Application No. 6 of 2021 and cited in Neutral Citation No.: 2024:BHC-GOA:1465 that was pronounced on September 3, 2024 has explicitly held that a woman booking a hotel room with a man and going inside the room with him does not imply that she consented to sexual intercourse with him. Without beating about the bush, the Single Judge Bench comprising of Hon’ble Mr Justice Bharat P Deshpande underscored laying down in no uncertain terms that even if it is assumed that the woman entered the room with the man, the same cannot by any stretch of imagination be considered as her consent for sex. Very rightly so!

In plain terms, we need to note that the Bench was most frank, firm and forthright to candidly hold that:
It is no doubt true that there is material to show that the accused and the complainant were instrumental in booking the room, however, that would not be considered as consent given by the victim for the purpose of sexual intercourse….Even if it is accepted that the victim went inside the room along with the accused, the same cannot by any stretch of imagination be considered as her consent for sexual intercourse. We thus see therefore, that the Goa Bench of Bombay High Court most rationally deemed it absolutely fit to quash the order of discharge that was passed by the Trial Court in March 2021 by which the rape case against the accused named Gulsher Ahmed had been closed and restored the trial to commence against the accused. No denying it.

At the very outset, we need to note that this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench of Goa Bench of Bombay High Court comprising of Hon’ble Mr Justice Bharat P Deshpande sets the ball in motion by first and foremost putting forth in para 2 that:
The present Revision is filed challenging the order dated 03.03.2021 passed by the Additional Sessions Judge, Margao, thereby discharging the Respondent/Accused for the offence punishable under Sections 376 and 506 (ii) of the IPC.

It definitely has to be taken into account that the Bench very rightly envisaged in para 8 that:
The question before the learned Sessions Court was only with regard to framing of charge against the Accused. However, the tenor of the order passed while discharging the Accused would clearly go to show that the entire burden is put on the Complainant and she has been disbelieved only because she accompanied the Accused and went inside the room. Such observations of the learned Trial Court and that too at the stage of framing of charge are clearly beyond the scope of the provisions under which the Sessions Court is required to consider the material so as to frame the charge against the Accused.

Do note, the Bench notes in para 9 that:
Chapter XVIII of Cr.P.C. deals with a trial before the Sessions Court and the relevant provisions are Sections 227 and 228, which are material for the Court to consider, after receiving of the chargesheet and on the appearance of the Accused, as to whether there is material to frame charge against the Accused or not. The wording under Section 228 simply says that if a Court comes to a conclusion that there is a ground for presuming that the Accused has committed such an offence, the charge could be framed.

Needless to say, the Bench then specifies in para 10 stating that:
It is well settled that at the stage of framing the charge, the Court has to shift and weigh the material only for the purpose of forming an opinion as to whether there is any material to frame the charge. While doing so, the Court has to peruse the entire chargesheet along with the statements of the Victim and other witnesses as well as the documents corroborating the case of the prosecution. Once the Court comes to a conclusion that there is grave suspicion, the charge is required to be framed.

Do note, the Bench notes in para 11 that:
The matter in hand would clearly go to show that the complaint is lodged by the Victim immediately after the incident. The record shows that the Victim after coming out of the room, immediately called the Police. On arrival of the Police at the said hotel, the Complainant was taken to the Police Station and the complaint was lodged. The Victim in clear words disclosed that the Accused took her to a hotel under the pretext of having a meeting with an Agent, who was supposed to provide her job abroad.

Most rationally, the Bench observes without mincing any words in para 12 clarifying that:
It is no doubt true that there is material to show that the Accused and the Complainant were instrumental in booking the room, however, that would not be considered as consent given by the Victim for the purpose of sexual intercourse.

It cannot be just glossed over that the Bench then discloses in para 13 mentioning that:
The Complainant in her statement disclosed that the Accused after closing the room threatened her to kill and thereafter, had sexual intercourse without her consent. She stated that once the Accused went inside the bathroom, she immediately came out of the room and went running towards the ground floor and then called the Police by dialing the number 100.

Further, the Bench reveals in para 14 stating that:
The record shows that the Accused was arrested on the same day whereas the panchanama of the scene of offence was conducted on the next date i.e. on 03.03.2020. During the said panchanama, the room was inspected and no incriminating articles were found and attached.

It certainly cannot be lost sight of that the Bench points out succinctly in para 15 postulating precisely that:
The Victim was subjected to medical examination on the date of the complaint but during night time and the report is placed on record. The opinion of the Doctor says that the examination report is reserved pending reports of serological/biological examination. Thus, it cannot be said that the report is not supporting the case of the prosecution.

It would be worthwhile to note that the Bench then lays bare in para 16 disclosing that:
Though the witness at the hotel disclosed that the Accused along with the Complainant went inside the room, there is a statement of one hotel staff which clearly shows that he saw the girl [Victim] coming down crying and went directly outside the hotel and was calling someone. This statement fully corroborates with the contents of the complaint as well as her statement recorded under Section 164 of Cr.P.C.

Most significantly, the Bench encapsulates in para 17 what constitutes the cornerstone of this notable judgment postulating that:
The learned Additional Sessions Judge clearly committed an error by observing that since the Victim went inside the room, she consented to sexual intercourse. Drawing such an inference is clearly against the settled proposition and specifically when the complaint was lodged immediately after the incident. Even if it is accepted that the Victim went inside the room along with the Accused, the same cannot by any stretch of imagination be considered as her consent for sexual intercourse. The learned Additional Sessions Judge has clearly mixed two aspects i.e. going inside with the Accused in a room without any protest and secondly, giving consent for what happened in the room. The action on the part of the Complainant immediately after coming out of the room and that too crying, calling the Police and lodging a complaint on that day itself show that the overt act allegedly carried out in the room by the Accused was not consensual.

Equally significant is what is then noted in para 18 stating specifically that, The statement given by the Complainant as well as recorded under Section 164 of Cr.P.C., cannot be disbelieved in a manner which the learned Additional Sessions Court did and that too while passing an order for discharging the Accused. The only job is to find out whether there is strong suspicion. If it is found that there is material to frame a charge, it is the bounden duty of the Court to frame the charge and put the Accused to trial. The report from the forensic laboratory was subsequently received which confirmed the presence of semen on the clothes of the Victim.

Most forthrightly, what is worth noting here is that the Bench minces just no words to note in para 19 postulating and directing that:
It is a settled proposition of law that in case of rape under Section 376 of IPC, full penetration is not at all necessary. The learned Trial Court has completely lost sight of the above settled proposition and arrived at a finding which is perverse to the record. The impugned order is therefore quashed and set aside. There is sufficient material to frame a charge against the Accused/Respondent herein for the offence punishable under Sections 376 and 506(ii) of IPC. The Trial Court is therefore directed to frame charges against the Accused accordingly.

In addition, the Bench then directs in para 20 stating that:
Parties shall appear before the Trial Court on 26.09.2024 at 10:00 a.m.

Finally, the Bench then concludes by holding in para 21 that:
The Revision Application stands disposed of accordingly.

In conclusion, we thus see that the Goa Bench of the Bombay High Court has made it indubitably clear that woman entering hotel room with man does not imply her consent for sex. There can be just no gainsaying that if a man dares to have sex with woman without her consent then he must be made to pay for it and face trial and if convicted then be ready to spend time in jail! What is most noteworthy in this leading case that has to be borne in mind by us is that the woman had immediately complained and it is not after few years or few months or few days that she complained. Her prompt complaint against the forcible sexual intercourse has to be accorded the highest priority which is what the Goa Bench has done so very commendably in this leading case and directed the Trial Court to frame charges against the accused. So the accused now has no option but to face the trial and prove whether the sexual intercourse was consensual which if he fails will have to spend time in jail! No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh