Sexual Intercourse During Deep Love Affair Not Rape!

...it is evident that PW-1 not only continued with the relationship with the appellant after the first incident, but, also went to the extent of withdrawing the complaint by filing an affidavit (Exhibit-26), in which, she has stated that she could not see the appellant behind bars, who was then under depression and was undergoing treatment at IPHB hospital, Bambolim and was desirous of withdrawing the complaint due to her personal reasons and emotions. This would clearly show that there was deep love affair between the appellant and PW-1. It cannot be said that the consent given by PW-1 was on account of any promise of marriage made by the appellant.

The presumption under Section 114-A of the Evidence Act cannot take the case of the prosecution any further. It is true that the said presumption is a statutory presumption and the Court is obliged to draw such presumption, provided the foundational facts are established. However, the fact remains that such presumption is a rebuttable presumption. The accused can rebut such presumption on the basis of the evidence led by the prosecution and the attending circumstances, which have come on record.

It can thus be clearly seen that there was a love affair between the appellant and PW-1 and there was a clear consent, on the basis of which, the appellant and PW-1 had physical relationship. The only question is whether, such a consent can be said to be on misconception of fact as to the promise of marriage by the appellant.