On 3rd April 2021, Saturday the Hon’ble Delhi HC after observing the instant case approved anticipatory bail to a Delhi based Doctor accused of raping a woman on the pretext of the false promise of marriage, the Hon’ble HC also detected that there was “no forceful sexual assault” done by the accused in the case.
Needful to mention that during the investigation no substantial evidence was found which can be recorded and can indicate that the doctor promised to marry the prosecutrix and therefore the question of whether such consent by the prosecutrix to have a physical relationship with the doctor was consensual or not needs to be decided during the trial.
At the outset, the alleged accused is a Doctor working in Safdarjung Hospital and it cannot be said that the alleged accused would be in a position to intimidate the prosecutrix or tamper with evidence. Essential to note that during the police investigation the police authorities have seized the mobile phone of the doctor (alleged accused). Given the facts and evidence presented before the Hon’ble court, the Hon’ble single judge bench believes that “it just and expedient to grant anticipatory bail to the alleged accused in the event of arrest in FIR registered in Police Station Hauz Khas for offences punishable under Section 376 and 328 Indian Penal Code, 1860 (hereinafter referred to as “IPC, 1860″).”
In the due course, an anticipatory bail application was filed by the doctor under section. 438 Criminal Procedure Code, 1973 (hereinafter referred to as “Cr.P.C., 1973”) anticipating arrest in an FIR filed against him under section. 376 (Punishment for Rape) and section. 328 (Causing hurt by means of Poison…. with the intent to commit an offence) under the IPC, 1860.
According to the complaint filed, it was alleged by the woman that during her father’s treatment at the Safdarjung Hospital, the doctor came to her residence and gave his profile for marriage and asked for her profile. Additionally, the woman also claimed that the doctor called her to his residence wherein she was allegedly given some cold drink after which she could not recollect anything. Furthermore, she also stated that it was after her gaining consciousness that she comprehended that she was raped, and in the event of confronting the alleged doctor, she alleged that the doctor started to threaten her that he will viral her video. Moreover, the prosecutrix also alleged that he raped her yet again on two other occasions.
Subsequently, the Hon’ble Sessions Court in its order passed rejected the anticipatory bail application filed by the doctor on the ground that the sexual relationship was consensual between the alleged accused and the prosecutrix on the promise of marriage.
The senior counsel appearing on behalf of the doctor contended before the Hon’ble HC that the counsel has joined the examination done by the police and that the police has seized the mobile phone of the alleged accused which contained the photos and videos as alleged by the prosecutrix. Likewise, it was argued that the statements of the prosecutrix and her sister did not match and that no useful purpose would be served by arresting the doctor.
On the other hand, counsel appearing on behalf of the prosecutrix submitted that the offence committed by the alleged accused is “heinous in nature” and that it was only on the pretext of his promise to marry her that she established a physical relationship with him. Additionally, the counsel also stated that the prosecutrix started receiving indecent messages from unknown numbers at the instance of the doctor.
Eventually, the Hon’ble Court after going through the records observed that there was no promise made to marriage in the instant case. Noting that there were contradictions on the initial and present versions of the prosecutrix. Given this, the Hon’ble Court referred to the judgment passed by the Hon’ble apex court in the case of Pramod Suryabhan Pawar versus. The state of Maharashtra, (2019) 9 SCC 608 wherein the Hon’ble Apex Court determined that “the “consent” of a woman concerning Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time, it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.”
Hence, the Hon’ble HC while granting anticipatory bail to the doctor reasoned that “the prosecutrix is a make-up artist and is a resident of Delhi. It cannot be said that she is an innocent lady. This is not a case of forceful sexual assault. At this stage, there is nothing on record that would indicate that the petitioner had promised marriage to the prosecutrix and therefore the consent given by the prosecutrix to have a physical relationship was a free consent or not will be decided only during the trial.”
Subsequently, the anticipatory bail was approved by the Hon’ble court to the alleged accused doctor subject to furnishing of a personal bond of Rs. 50,000 and one surety of like amount being a relative.
It is essential to mention that recently the Hon’ble Orissa HC opined that there is a need for the amendment in the legislation defining what constitutes “sexual intercourse” with the prosecutrix on the “pretext of a false promise of marriage. As in the present scenario, the law on this matter lacks clarity for the conviction of the accused.” Hon’ble Orissa High Court observed.