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The Delhi high court has held that presumption of absence of consent in certain types of rape cases under section 114A of the Indian Evidence Act, 1872 attracted only if sexual intercourse is proved.
Appellant came into contact with accused through linkedin for her research work. She alleged that she was raped by accused in a hotel room in Delhi. The court observed that at the time of booking the hotel room, the appellant was comfortable with the accused and even produced her identity proof at the time of the booking and raised no alarm, even when she stayed at the room. Even when the accuse and appellant came out of the hotel, they both took an auto together and went to shivaji metro and from there took the metro and reached Aerocity Metro Station. Thereafter,the accused took his flight and the appellant went to her home at Dwaraka after seeing him off.
However, she did not make any call to the police or any other person because the accused had taken away her phone but it is noted that as per her own testimony in court,her phone was returned by the accused before leaving.
Although the appellant made 529 calls to the accused from her mobile number during the days following the alleged incident,she maintained that she did not remember her own mobile number or her landline number. Further it is observed there was no evidence that appellant is intoxicated and she refused internal medical examination.
The judgment was passed by Division bench of justices Manmohan and Sangita Shingra Sehgal in appeal from a trail court, accused u/s 328,376(2)(n), 343,506 of IPC.
Court concluded that the testimony of appellant was unreliable and inspired no confidence and further added that section 114A of the Evidence act would not be attracted if the factum of sexual intercourse was not proved.
The order states,
“There were various lacunae in the case of the prosecution and the benefit of doubt would have to ensure to the benefit of the accused “
Therefore, the appeal was dismissed for being bereft of merits.
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