‘Clear Case Of Consent’: Gujarat High Court Upholds Acquittal In Rape Case Where Accused & Victim Were In A Relationship

The High Court was considering an appeal filed by the State challenging the acquittal of a sole accused in a case registered under Sections 376 and 506(2) of the Indian Penal Code and Section 67 of the Information Technology Act.

The Division Bench of Justice Cheekati Manavendranath Roy and Justice D. M. Vyas said, “Upon considering said evidence on record and on reappraisal of the same, we are also of the firm view that both the accused and the victim had an affair with each other which is evident from the photographs and if at all there is any sexual intercourse between both of them that it is consensual sexual intercourse that took place with a clear consent of the victim and no offence of any rape or the offence of criminal intimidation was committed by the accused. As the video said to have been recorded by the accused is not seized and available on record, the offence under Section 67 of the Information and Technology Act is also not proved.”

“It indicates that there was no resistance from her even when her clothes were stripped off. This circumstance clearly and clinchingly proves that she has voluntarily accompanied the accused and if at all there is any sexual intercourse between both of them that it was a consensual sexual intercourse between both of them and it is a clear case of consent. We have already noticed that she is a major girl aged about 20 years”, the Bench added.

Additional Public Prosecutor Bhargav Pandya represented the Appellant while Advocate Shrikar H Bhatt represented the Respondent.

Factual Background

It was alleged that the accused had taken the victim on to the terrace of a building and had forcible sexual intercourse with her against her consent and thereby raped her. He had stripped off her clothes and had taken her video on his mobile. He allegedly threatened the victim girl of dire consequences if she disclosed the incident to anyone and also threatened to make the said video viral.

The victim lodged a report with the police three months after the date of the incident. On medical examination, the doctors did not find any signs or evidence of forcible sexual intercourse or rape. At the end of the trial, the trial court found the accused not guilty of the said charges and acquitted him. Aggrieved thereby, the State approached the High Court.

Reasoning

The Bench noted that though it was stated by the victim in her examination-in-chief that she was taken by the accused to the terrace, however, in the cross-examination she stated that the accused did not take her to the terrace. “Thus, she has prevaricated from her statement given in her examination-in-chief in her cross examination. This inconsistency in her evidence regarding the allegation that she was taken by the accused on to the terrace proves that the said allegation made by her in the FIR and her examination-in-chief that the accused took her to the terrace is absolutely false”, it said.

On a perusal of the evidence, the Bench found that she had voluntarily accompanied the accused onto the terrace. “The Mayka Institute of Millenium Complex market is a public place which is situated opposite to MK College in a busy locality. It is unbelievable to state that the accused has forcibly took her on the terrace of said complex which is in a market place and that too during day time at 9:30 a.m. in the morning. So, it clearly indicates and proves that she has voluntarily accompanied the accused on to the terrace of the said complex during the day time”, it added.

Neither any injury was found on her body nor any sign of rape was mentioned in the medical reports. It was further noticed that the both of them knew each other as they were residing in the same vicinity. There was also an inordinate delay in lodging the FIR.

“Though every delay in lodging the FIR is not fatal to the case of the prosecution, the court expects some explanation from the prosecutrix in lodging the report with such an inordinate delay of three months. No explanation is forthcoming to explain the said delay. Therefore, her silence for a period of three months, absence of injury on her body, absence of resistance from her, absence of any medical evidence relating to forcible sexual intercourse or rape clearly proves that there was no offence of rape committed on the victim PW-14”, the bench held.

Finding the impugned judgment to be perfectly sustainable in law, the Bench dismissed the appeal.

Cause Title: State of Gujarat v. Virendrasinh Ajitsinh Makwana (Neutral Citation: 2025:GUJHC:35141-DB)

Appearance

Petitioner: Additional Public Prosecutor Bhargav Pandya

Respondent: Advocate Shrikar H Bhatt

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