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Having consensual sex with major girl not offence but immoral, against Indian norms

Having consensual sex with major girl not offence but immoral, against Indian norms

Raju Vs State of UP

Allahabad HC



About/from the judgment:

Having consensual sex with a girl who is a major, is not an offence under law but it is unethical, immoral and against established Indian norms, remarked High Court while denying bail to one Raju, who was accused of raping his girlfriend along with other co-accused.

The Court denied bail to Raju, stating that it was his duty to protect his girlfriend when she was being sexually harassed by the other co-accused.

"The moment the applicant submits that the victim is his beloved, it was his binding duty to protect the dignity, honor 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 order said.

The Court termed the applicant's act as highly deplorable and unbecoming of a boyfriend, stating that "he remained silent spectator when the co-accused persons were brutally sexually assassinating his beloved in front of him" and "no effort to put a stiff resistance was made by him so that the soul and body of the victim could be saved from further butchering by these flesh vultures."

The Court was hearing a bail plea moved by Raju who was accused of gang-raping his girlfriend along with other co-accused.

Initially, the applicant was charged under Sections 376-D, 392, 323, 504, and 506 of Indian Penal Code and Sections 5 and 6 of POCSO Act.

However, after the investigation the Police had dropped all other sections except section 376-D of IPC and section 5 and section 6 of POCSO Act.

A perusal of the First Information Report (FIR) revealed that the prosecutrix (referred as Miss 'X') had at around 8.00 in the morning, went to take stitching lessons at a stitching center. She also had spoken to her boyfriend Raju over phone and planned to meet him.

After she was done with her stitching classes at around 11.00 AM, she went with the applicant on his motorcycle.

When they reached a culvert of a local river in a secluded place, the accused expressed his desire to have sex with the prosecutrix and despite her stiff resistance, the applicant was successful in establishing physical relationship with her.

During this period, three other persons reached there, abused and beat the applicant and snatched his mobile and proceeded to rape the prosecutrix.

As they committed the act, they took each other's names as Gulshan and Satyam, enabling the prosecutrix to identify them.

The counsel for applicant submitted that there was a delay in lodging first information report and it was lodged only on the next day giving ample time to cook up an imaginary story falsely implicating the applicant.

Further, the Court's attention was drawn to the statements of the victim recorded under Sections 161 and 164 of the Code of Criminal Procedure, in which she has admitted that the applicant was her boyfriend and he had consensual sex with her.

After examining the material placed on record and the contents of the FIR, the Court denied bail to the applicant, stating that it cannot be said with certainty that the applicant had got no association or connection with remaining co-accused persons.

"The conduct of the applicant is highly deplorable and unbecoming of a boyfriend who could not save his girlfriend from these offenders. The chivalrous boyfriend as per the statement of the victim has taken her to the police station to lodge FIR and by doing this he is alleged to have performed his duty qua his girlfriend," the Court noted.

The Court opined that the applicant himself was party to the nefarious crime as the co-accused persons.

"Looking to the nature of offence, its gravity and the evidence in support of it and the overall circumstances of this case, I am not inclined to exercise my discretionary power u/s 439 Cr.P.C. in favour of applicant, therefore, the prayer for bail of the applicant is REJECTED."

Read the Judgment


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