Woman entering hotel room with man does not imply her consent for sex: Bombay High Court

In an important ruling, the Goa Bench of the Bombay High Court recently held that a woman booking a hotel room with a man and going inside the room with him does not imply that she consented to sexual intercourse with him [State through Canacon Police Station v. Gulshar Ahmed]..Justice Bharat P Deshpande underscored that even if it is assumed that the woman entered the room with the man, the same cannot by any stretch of imagination be considered as her consent for sex."It is no doubt true that there is material to show that the accused and the complainant were instrumental in booking the room, however, that would not be considered as consent given by the victim for the purpose of sexual intercourse....Even if it is accepted that the victim went inside the room along with the accused, the same cannot by any stretch of imagination be considered as her consent for sexual intercourse," the Court held.Therefore, the Court quashed the order of discharge passed by trial court in March 2021 by which the rape case against the accused, one Gulsher Ahmed, had been closed.In its order for discharge, the trial court had said that since the woman was instrumental in booking the hotel room and entered the same with accused, she had consented to the sexual intercourse that took place inside the room."Drawing such an inference is clearly against the settled proposition and specifically when the complaint was lodged immediately after the incident," the High Court held in its September 3 judgment. .The case arose March 2020 when the accused allegedly offered the survivor-woman a private employment overseas. The accused had reportedly deceived the woman to come to a hotel room in the guise of meeting with an agency for employment purpose. Both the accused and the survivor had booked the room together.However, the survivor alleged that shortly after entering the hotel room, the accused threatened to murder her. He then raped her. She stated that when the accused went to the bathroom, she fled the room and ran out of the hotel and informed the police. Subsequently, the accused was arrested and booked under Sections 376 (rape) and 506 (criminal intimidation) of the Indian Penal Code (IPC).The trial court discharged the accused holding that since the woman had voluntarily gone inside the room, she had consented to sexual intercourse..The High Court rejected these findings and observed that the trial judge 'clearly committed an error' by making such observations. "It is no doubt true that there is material to show that the accused and the complainant were instrumental in booking the room, however, that would not be considered as consent given by the victim for the purpose of sexual intercourse," the Court said.The Court noted that trial judge mixed two aspects of survivor going inside the room without any protest and giving consent to what takes place inside the room."The learned Additional Sessions Judge has clearly mixed two aspects i.e. going inside with the accused in a room without any protest and secondly, giving consent for what happened in the room. The action on the part of the complainant immediately after coming out of the room and that too crying, calling the police and lodging a complaint on that day itself show that the overt act allegedly carried out in the room by the accused was not consensual," the Court reasoned.The Court also noted that the hotel personnel had also detailed the whole scenario in line with the survivor-woman's statement.Therefore, the Court rejected the accused's claim that the woman had no issue in booking the hotel room and that they had lunch together before entering the room, implying that she agreed to the sexual encounter.Hence, it set aside the discharge order passed by the trial court and restored the trial against the accused.Public prosecutor SG Bhobe appeared for the State.Advocates Kautuk Raikar and Digaj Bene appeared for the accused..[Read Judgment]