Mumbai, May 21 (PTI) Noting that a woman's consent cannot be deemed as based on "misconception of fact" when she makes a "reasonable choice" to establish a physical relationship by understanding the consequence, a court has acquitted an NRI scientist booked for rape under the pretext of marriage.
Additional sessions judge, Kishor More, however, mentioned that the situation may be viewed differently if there is clear evidence that a false promise was made.
The NRI, a scientist originally from Gujarat and working in Europe, was accused of a raping a 27-year-old woman from Thane allegedly on the pretext on marrying her.
According to the prosecution, the woman, who had separated from her husband, came across the profile of the accused on a matrimonial website in September 2019.
After liking each other's profiles, the two began chatting and exchanging messages over the phone. They met in Mumbai on December 31, 2019, to celebrate the New Year.
Responding to the victim's query whether he liked her, the accused "assured and promised to marry her", the prosecution said.
The duo checked in in a five-star hotel in suburban Andheri where the NRI allegedly raped the woman by spiking her drink, as per the FIR.
The prosecution further said that the duo stayed in the hotel and jointly went to a club for the New Year's party. They checked out of the hotel the next morning.
The accused, however, started avoiding the woman and refused to marry her citing the refusal of his parents and claiming that she was already married, leading to the victim lodging a rape case, the prosecution said.
In her cross-examination, the victim admitted that she had "mistakenly" mentioned her marital status as "never married" in her matrimonial profile.
Initially, when they started chatting on the phone, she informed the accused that she was a divorcee.
The court stated that the prosecution has not placed on record a copy of the divorce decree with her husband.
The accused denied the allegations made against him in his court statement.
The NRI stated that he had sought time from the woman before he took a call on marrying her, but she started blackmailing him and threatened to file a false case against him.
During a personal interaction in Mumbai, he came to know that the victim had converted to Islam
after her initial marriage and had not divorced her first husband.
Citing WhatsApp chats, the defence contended that the victim and the accused had exchanged messages expressing their desire to establish a physical relationship.
According to the defence, the chats show there was no misconception of the fact that the accused deceived the victim into having physical relations under the pretext of a false promise of marriage.
"In fact, the victim has lured the accused for marriage by concealing her marital status on a profile uploaded on a matrimonial site. The victim has falsely implicated the accused to grab or extort money," the defence argued.
The court noted that the woman "had enjoyed the company of the accused" from arrival to the checkout at the hotel.
"The victim had not complained against the accused to any hotel staff or manager who were present at the relevant time. The victim has not given a satisfactory explanation for causing delay in lodging the report of the incident after about six days," the court stated.
Further, the order mentioned that the victim, in her cross-examination, admitted that the accused had given assurance to marry her in April 2020.
"This admission by the victim goes to establish that the accused had not flatly refused to marry her. Apparently, he was trying to convince his parents, as the victim was already married and converted to the Muslim religion," it said.
It pointed out that all these circumstances "sufficiently established" that the physical relations between the two on December 31, 2109, were consensual.
"Whenever a woman makes a reasoned choice to establish physical relations after fully understanding the consequence of such action, the 'consent' cannot be said to be based on misconception of fact until and unless there is a clear evidence that a false promise with no intention of upholding the same was given by the maker at the time of making the promise," the court stated.