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Consensual sex with major not offence but unethical, immoral, Allahabad HC says

Court denies bail to a man for allegedly sexually assaulting his girlfriend and standing as a mute spectator while she was being allegedly raped by two more men.

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New Delhi: The Allahabad High Court has denied bail to a man for allegedly sexually assaulting his girlfriend and standing as a mute spectator while she was being allegedly raped by two more men.

In its order dated 21 October, a single-judge bench of Justice Rahul Chaturvedi rejected accused Raju’s defence that the victim is his girlfriend and both had consensual sex. The judge remarked having consensual sex with a girl who is a major is not an offence under the law, but is “unethical, immoral and against established Indian norms.”

However, at the same time, the judge chided Raju for failing in his duty to protect his girlfriend when she was being allegedly sexually harassed by the co-accused.

The court even refused to accept Raju’s contention that he was not associated with the two other accused, saying it was too early to conclude the same.

Raju was charged under Sections 376-D (taking advantage of his position to rape the victim), 392 (punishment for robbery), 323 (punishment for voluntarily causing hurt), 504 (whoever intentionally insults and gives provocation to any person to commit an offence) and 506 (criminal intimidation) of the Indian Penal Code (IPC), and under POCSO Act.

After the investigation, the police dropped all the sections except section 376D of IPC and the POCSO provisions.

Also read: ‘Judicial courtesy & decorum’ — why Allahabad HC stayed survey of Varanasi’s Gyanvapi mosque

‘Unethical and immoral’

According to the prosecution, the victim had left her home at 8 am on 19 February to attend her tailoring lessons in Kaushambi. She spoke with Raju over the phone and planned to meet him. After her class was over, she met with Raju at around 11 am and went on his motorcycle. When the two reached a culvert of a local river in a secluded place, the accused expressed his desire to have sex with the victim. Despite her stiff resistance, the applicant forced himself upon her.

Meanwhile, three men reached the spot, abused and beat up Raju, snatched his mobile and allegedly raped the victim. The two took each other’s name while committing the alleged crime, enabling the victim to identify them.

Taking note of the material placed on record and contents of the FIR, the court termed Raju’s behaviour as deplorable and “unbecoming of a boyfriend.”

“The moment the applicant submits that the victim is his beloved, it was his binding duty to protect the dignity, honour and reputation of his girlfriend. If a girl is major one, then to have sex with her consent is not an offence, but certainly it is unethical and immoral and also not in consonance with the established social norms of the Indian society,” the judge noted in his order.

Raju, the court observed, remained a silent spectator when the co-accused were brutally assaulting “his beloved in front of him.” He made no effort to put up stiff resistance to save the “soul and body” of the victim from “further butchering by the flesh vultures.”

The only duty he performed as a “chivalrous boyfriend” was that he accompanied the victim to the police station to lodge the FIR, the court remarked.

Before the court, the accused argued the FIR was registered belatedly, as it was lodged only a day after the alleged incident. The time taken gave ample time to the victim to cook up an imaginary story to falsely implicate the accused.

The accused also took the court through the victim’s statements under sections 161 (given to the police) and 164 (recorded before the magistrate) of CrPC, admitting Raju was her boyfriend and the two had consensual sex.

On Raju’s plea of not knowing the co-accused, the judge said it cannot be said with certainty that the application had no association or connection with them.

(Edited by Neha Mahajan)

Also read: Massive caseload, massive vacancies: Inside story of extraordinary mismatch at Allahabad HC


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