A Delhi court has dismissed the anticipatory bail application of 28-year-old Mumbai-based journalist Varun Hiremath, who has been accused in a rape case. The court observed that consent cannot be implied from a victim’s previous sexual experiences with the accused.
The order was passed on March 12 by Additional Sessions Judge Sanjay Khanagwal (fast track courts), Patiala House Court. In his order, the judge wrote,
Although WhatsApp and Instagram chats has not been specifically denied from the side of the prosecution but despite the fact that accused and prosecutrix were having loving relationship and they were being indulged in sexual explicit talks that also not going to make any difference at this stage in view of section 53-(a) of Indian Evidence Act which provides that evidence of character or previous sexual experiences not relevant in certain cases including the offence under section 376 and this provision specifically shows that previous sexual experiences with any person shall not be relevant on the issue of such consent or quality of consent (sic).
The order also read,
Therefore, from her previous experiences with the accused the consent cannot be implied. This observation is also found support from Section 114 A Indian Evidence Act which deals with the presumption as to the absence of consent of certain cases for the rape and if sexual intercourse by the accused is proved.
Allegations By Woman
The woman in her complaint and her statement before the magistrate has alleged she was raped by Hiremath, who works with ET Now, at a five-star hotel in Chanakyapuri on February 20.
On the basis of woman’s complaint, an FIR under:
- Section 376 (punishment of offence of rape)
- Section 342 (punishment for wrongful confinement)
- Section 509 (word, gesture or act intended to insult the modesty of a woman)
….of the IPC was registered at Chanakyapuri police station.
Patiala House Court
The court said,
As far as the question of consent or no consent is concerned, the woman stated in her evidence before the court that she did not consent, hence the court shall presume that she did not consent.
The court also said,
Contradictions pointed out by the defence counsel are “not material” and “not sufficient to disbelieve the version of the prosecutrix.
The probe officer told the court they needed to conduct custodial interrogation of the accused.
Advocate Sandeep Kapur, the lawyer for the accused, argued that his client has been “falsely implicated”. Kapur said,
Whatever had happened on the day of offence was consensual and even prosecutrix who is coming from Pune to Delhi to meet the accused and thereafter joining him in the hotel in a double occupancy room where she herself had given her identity documents are sufficient to show that she herself was interested in going into the hotel room for the purpose of sexual relationship with the accused.
The counsel for the complainant, Jai Anant Dehadrai, Sidharth Arora and Ashna Chhabra, submitted,
She was not willing for any sexual indulgence with the accused. When they were passing through the lobby of the hotel room, even at that time the prosecutrix has denied the offer of the accused, merely going into the room of the hotel with the accused does not show her intention to indulge in sexual activities with him.
The court noted,
In her complaint as well as in her statement, she has stated that she was feared of injury if she attempted to escape the room. Therefore, she bow down to the forcible demands of the accused. She has also stated that she always resisted the act of accused…
The court also remarked,
In order to support the version of the prosecutrix the IO has shown some WhatsApp chats of accused and prosecutrix after commission of offence… same are indicating towards the feeling of sorry by the accused of his acts.
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