Woman in semi-conscious state cannot give consent for sex: Kerala High Court rejects anticipatory bail plea in rape case

The Kerala High Court on Thursday observed that a woman in a semi-conscious state cannot give consent for sex. .Justice A Badharudeen, therefore, rejected a plea for anticipatory bail by a man accused of rape.The Court was dealing with a case involving allegations that a woman belonging to Scheduled Caste community, was raped after she was given cake and a bottle of water containing a noxious liquid, which rendered her semi-conscious. .“In this case the specific case of the defacto complainant is that she was subjected to rape after giving her a cake and a bottle of water by the accused and later she felt that her eye sight was diminishing and when she was at a semi conscious stage. In such a case, it cannot be held that the overt act alleged by the defacto complainant is one (that) arose out of consent," the Court observed. .The Court found that, prima facie, the allegations against the accused were made out. As such, the Court found that the bar on granting pre-arrest bail in offences under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (SC/ST Act) would apply."Therefore, the prosecution allegations are well made out prima facie and as such anticipatory bail cannot be granted in view of the specific bar under Section 18 and 18A of the SC/ST Act," the Court held..A special court dealing with SC/ST Act offences had earlier dismissed the accused man's plea for anticipatory bail, prompting him to approach the High Court for relief. The man (appellant) stood charged with offences punishable under Sections 354(A)(1)(i) (sexual harassment), 506 (criminal intimidation), and 376(2)(n) (dealing with punishment for rape) of the Indian Penal Code (IPC), apart from Section 3(2)(v) of the SC/ST Act..The appellant asserted before the High Court that he and the complainant were in a relationship and that she had lodged a false rape complaint after their relationship became strained..The prosecution, on the other hand, asserted that the accused had committed rape after giving the complainant some noxious liquid, which rendered her semi-conscious. The prosecution also alleged that the accused man had threatened and raped her on other occasions as well after the said incident..The Public Prosecutor added that even if there was a love affair between the complainant and the appellant, the rape charge would stand since the appellant had given a noxious liquid to the complainant and made her semi-conscious to avoid her resistance to sexual intercourse. .Meanwhile, an audio recording of a phone call between the complainant and the appellant was relied on by the appellant's counsel to assert that the relations between the two were cordial even after the alleged incident. The appellant's counsel argued that the complainant ruined the cordial relations by foisting a false case. .The High Court, however, opined that the recording may also indicate that there was sexual abuse involved."Going by the telephonic conversations also, though cordial relationship could be seen, the occurrence as narrated by the defacto complainant in the matter of sexual abuse could be foreseen," the Court said. .Hence, the Court concluded that a prima facie case had been made out against the appellant and rejected his plea for anticipatory bail..[Read Judgment]