Booking Hotel Room With Man Does Not Imply Woman’s Consent For Sexual Intercourse: Bombay HC

The Goa Bench of the Bombay High Court has recently held that a woman entering a hotel room with a man does not imply her consent to engage in sexual intercourse.

The Single-Bench of Justice Bharat P. Deshpande, in a judgment dated September 3, emphasized that even if the woman voluntarily booked and entered the room with the accused, it "cannot by any stretch of imagination be considered as her consent for sexual intercourse."

"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 said. 

Public Prosecutor (PP) SG Bhobe appeared for the State, and Advocates Kautuk Raikar and Digaj Bene appeared for the accused.

The Court quashed a 2021 discharge order by a Trial Court, which had previously dismissed the rape case against accused Gulsher Ahmed, claiming that the woman’s actions in booking the room and accompanying the accused implied consent.

Rejecting this reasoning, the Single-Judge underscored that entering the room does not equate to consenting to sexual acts. "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 case arose from a March 2020 incident, where the accused allegedly misled the woman by promising employment overseas. Upon entering the hotel room, the accused reportedly threatened and then raped her. The woman managed to escape when the accused left her alone and immediately reported the incident to the police.

The Single-Judge criticized the Trial Court’s judgment, stating it improperly conflated the woman’s decision to enter the room with giving consent for what transpired inside. The Court also referenced witness testimony from hotel staff that aligned with the woman’s account, further indicating her lack of consent.

"The statement given by the Complainant as well as recorded under Section 164 of Cr.P.C., cannot be disbelieved in a manner which the learned Additional Sessions Court did and that too while passing an order for discharging the Accused. The only job is to find out whether there is strong suspicion. If it is found that there is material to frame a charge, it is the bounden duty of the Court to frame the charge and put the Accused to trial. The report from the forensic laboratory was subsequently received which confirmed the presence of semen on the clothes of the Victim," the Court said. 

The Single-Judge added, "It is a settled proposition of law that in case of rape under Section 376 of IPC, full penetration is not at all necessary. The learned Trial Court has completely lost sight of the above settled proposition and arrived at a finding which is perverse to the record."

Accordingly, the Court quashed and set aside the impugned order. "The impugned order is therefore quashed and set aside. There is sufficient material to frame a charge against the Accused/ Respondent herein for the offence punishable under Sections 376 and 506(ii) of IPC. The Trial Court is therefore directed to frame charges against the Accused accordingly," the Court said. 

Cause Title: State through Canacon Police Station v. Gulshar Ahmed [Neutral Citation No. 2024:BHC-GOA:1465]

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