Entering A Room with Someone Cannot, By Any Stretch Of Imagination, Be Considered Consent For Sexual Intercourse: Bombay High Court

Bombay High Court at Goa ruled in State through Canacona Police Station vs. Gulsher Ahmed, addressing a controversial discharge of charges by a lower court. Justice Bharat P. Deshpande quashed the Additional Sessions Judge’s March 2021 order, which had discharged Gulsher Ahmed from charges of rape and criminal intimidation under Sections 376 and 506(ii) of the Indian Penal Code (IPC). The High Court’s decision underlines a significant judicial stance on the definition of consent and the evidentiary requirements at the stage of framing charges.

The prosecution's case originated in March 2020, when the complainant alleged that the accused, Gulsher Ahmed, had lured her to a hotel room in Canacona, Goa, under the pretext of arranging a job opportunity abroad. Once inside, he allegedly coerced her into sexual intercourse without her consent and threatened to kill her. The complainant claimed that she immediately escaped, sought police help, and filed a complaint that day.

However, in March 2021, the Additional Sessions Judge dismissed the charges, citing apparent consensual activity, based on the fact that the complainant had voluntarily entered the hotel room with Ahmed. This discharge was then challenged by the State.

The High Court’s review centered on the validity of the lower court’s decision to discharge the accused. Justice Deshpande focused on critical legal points about consent, evidentiary standards, and the proper scope of inquiry at the charge-framing stage.

Justice Deshpande clarified that merely accompanying someone into a private space cannot imply consent to sexual activities. “Entering a room with someone cannot, by any stretch of imagination, be considered consent for sexual intercourse,” he stated. This reaffirms that consent under IPC Section 376 must be affirmative and voluntary regarding the specific act and cannot be inferred from unrelated actions.

The High Court also highlighted the distinct evidentiary standard required when framing charges. As per Sections 227 and 228 of the Criminal Procedure Code (Cr.P.C.), the court is only to establish whether a prima facie case exists, not to adjudicate guilt or innocence. Justice Deshpande criticized the lower court for evaluating evidence as though conducting a full trial, stating that the Sessions Court had “clearly mixed two aspects”—the decision to enter the room and the alleged absence of protest as implied consent.

Immediate Complaint and Consistent Statements: The High Court noted the complainant’s prompt report of the alleged assault, including her call to the police immediately after exiting the room. Her Section 164 Cr.P.C. statement and testimony indicated that she felt threatened and assaulted by Ahmed, providing a consistent account of events.

Forensic Evidence: The serological report, which became available post-discharge, detected semen on the complainant’s clothing, further corroborating her allegations. Justice Deshpande underscored that the presence of such forensic evidence supported a prima facie case that warranted a charge.

Consent and the Nature of Sexual Assault: Justice Deshpande reiterated that legal precedent establishes that “full penetration is not necessary” to substantiate a rape charge under Section 376. He highlighted that even without physical resistance, a lack of explicit, affirmative consent invalidates any presumption of consensual intercourse.

Misapplication of Legal Standards by the Lower Court: The High Court reprimanded the Additional Sessions Judge for assuming consent based on the complainant’s actions preceding the incident. Justice Deshpande concluded that the lower court’s approach was “perverse to the record” and “beyond the scope” of evaluating whether a strong suspicion existed to justify charges.

The Bombay High Court’s ruling in State through Canacona Police Station vs. Gulsher Ahmed underscores a reinforced legal stance on interpreting consent, especially in cases of sexual assault. By quashing the discharge and ordering that charges be framed, the court reaffirmed that the framing stage requires only prima facie evidence, and assumptions about consent cannot replace explicit and affirmative agreement.

Justice Deshpande directed the parties to appear before the trial court on September 26, 2024, for formal charge framing under Sections 376 and 506(ii) of the IPC.

Date of Decision: September 3, 2024