Although the most laudable one does not at all hesitate to attach prime importance to the dignity, consent and welfare of women, it is certainly most refreshing, most refreshing and also most reassuring to note that none other than one of the oldest and , also no doubt one of the most reputed and marinimous Supreme Court in India and hence also having maximum number of High Court Benches among all the States of India i.e. High Court of Bombay, whose Goa Bench in a most learned, laudable, landmark, logical and most recent judgment titled State Through Canacona Police Station vs Gulsher Ahmed in Criminal Revision Petition no. . 6 of 2021 and cited in Neutral Citation No: 2024:BHC-GOA:1465, which was pronounced on September 3, 2024, explicitly held that a woman booking a hotel room with a man and entering the room with he does not mean that she consented to intercourse with him. Without beating around the bush, the single bench comprising of Hon’ble Mr. Justice Bharat P Deshpande pointed out, without doubt, that even if the woman is supposed to have entered the room with the man, no such thing can happen. imagination to be taken as her consent to sex. Very rightly so!

In simple terms, we must note that the Bench was most honest, firm and forthright to candidly contend that: “No doubt there is material to show that the accused and the complainant were instrumental in booking the room, however, which would not be held to be consent given by the victim for the purpose of intercourse… Even if it is accepted that the victim entered the room with the accused, the same cannot by any stretch of the imagination be held as her consent to the sexual act”. We therefore find that the Goa Bench of the Bombay High Court has most rationally considered it absolutely appropriate to set aside the order of discharge which was passed by the trial Court in March 2021 whereby the case of rape against the accused named Gulsher Ahmed was closed and restored the commencement of the trial against the accused. Without denying.

At the very outset, we must note that this short, brilliant, bold and balanced judgment by the single judge Goa Bench of the Bombay High Court comprising Hon’ble Mr. Justice Bharat P Deshpande sets the ball rolling in the first place. first by stating in paragraph 2 that, “This revision is filed challenging the order dated 03.03.2021 passed by the Additional Sessions Judge, Margao, thereby acquitting the respondent/accused of the offense punishable under Sections 376 and 506 (ii) from the CPI.”

It must surely be borne in mind that the trial court rightly observed in paragraph 8 that, “The question before the Court in the hearings was only with regard to the framing of charges against the accused. The Accused would clearly go on to show that the entire onus is on the Complainant and that she was disbelieved only because she accompanied the Accused and entered the room clearly beyond the scope of the provisions under which the Court of Sessions is required to consider the materials to frame the charge against the accused.”

Note that in para 9, the tribunal notes that “Chapter XVIII of Cr.PC deals with a trial before the Sessions Court and the relevant provisions are Sections 227 and 228 which are important for the Court to consider, after receiving prosecution process. and on the appearance of the accused as to whether there is material to frame the charge against the accused or not. such an offence, the charge could be laid”.

Needless to say, then, in paragraph 10, the Tribunal states that: “It is well settled that at the stage of framing the charge, the Court has to go over and weigh the material only for the purpose of forming an opinion on any material for framing the charge, The Court must examine the entire prosecution case, together with the statements of the Victim and other witnesses, as well as the documents corroborating the case of the prosecution is a serious suspicion, the prosecution must formulated”.

Note that in paragraph 11 the Tribunal notes that “The issue at hand would clearly show that the complaint is filed by the victim immediately after the incident. The file shows that the victim, after leaving the room, immediately called the Police Upon the arrival of the Police at the said hotel, the Complainant was taken to the Police Station and the complaint was made, in clear words, that the Accused took her to a hotel under the pretext that he had a meeting with an Agent. , who had to secure his job abroad.”

Most rationally, the Tribunal observes without mincing a word in paragraph 12, clarifying that: “No doubt there is material to show that the Accused and the Complainant were instrumental in booking the room, however, this would not amount to consent . given by the Victim for the purpose of sexual contact.”

It cannot just be left out that the Bank then discloses in paragraph 13 stating that “The complainant in her statement disclosed that after closing the room, he threatened to kill her and thereafter had sexual relations without her consent. She stated that once the Accused entered the bathroom, she immediately left the room and ran downstairs and then called the Police by dialing 100″.

Further, the Tribunal discloses in paragraph 14, stating that, “The document shows that the accused was arrested on the same day, while the panchanama of the crime scene was conducted on the next date i.e. on 03.03.2020. During this panchanama, the room was inspected and no incriminating articles were found and attached.”

Certainly one cannot lose sight of the fact that the Tribunal succinctly points out in paragraph 15, postulating precisely that, “The victim was subjected to a medical check-up on the date of the complaint, but during the night and the report is recorded. The doctor says that the examination report is reserved pending serological/biological examination reports. Thus, it cannot be said that the minutes do not support the prosecution case.

It would be noteworthy that the Bench then discloses in paragraph 16, revealing that, “Though the witness from the hotel revealed that the accused along with the complainant entered the room, there is a statement of a staff of the hotel which clearly shows that he saw the girl (Victim) come down crying and went straight outside the hotel and called someone. This statement is fully corroborated with the content of the complaint as well as her statement recorded under Section 164 of Cr.PC.

Most significantly, the Tribunal encapsulates in paragraph 17 what constitutes the cornerstone of this landmark judgment by postulating that, “The learned Additional Sessions Judge clearly erred in observing that since the victim entered the room she consented to a sexual act. the inference is clearly against the settled proposition and particularly when the complaint was filed immediately after the incident. Even if it is accepted that the victim entered the room with the accused, the same cannot be taken as her consent to. the sexual act. The learned Additional Sessions Judge has clearly mixed up two aspects viz., entering with the Accused in a room without any protest and secondly granting the action to the plaintiff immediately after leaving the room and the latter crying, calling the Police and deposing a complaint that very day shows that the overt act committed in the room by the accused was not consensual”.

Equally significant is what is then noted in paragraph 18, which specifically states that “The statement given by the Complainant, as well as recorded under Section 164 of the Cr.PC, cannot be disbelieved in such a way that made by the Court of Additional Sessions and that also while passing an order of release of the accused. The only task is to find out if there is strong suspicion. Later, the report was received from the forensic laboratory which confirmed the presence of semen on the Victim’s clothes”.

Most directly, what is worth noting here is that the Bench did not mince the words to be observed in para 19, postulating and ordering that, “It is a settled proposition of law that in case of rape under Section 376 of the IPC, full penetration is not possible. all necessary the trial Court completely lost sight of the proposition set out above and arrived at a conclusion which is perverse on the record. The Respondent for the offense punishable under Sections 376 and 506(ii) of the IPC, therefore, the Municipal Court is directed to frame charges against the Accused accordingly.”

In addition, in paragraph 20, the court states that “The parties will appear before the trial court on 26.09.2024 at 10:00 a.m.”

Finally, the Tribunal concludes at paragraph 21 that “The Application for Review is properly disposed of.”

In conclusion, we thus see that the Goa Bench of the Bombay High Court has undoubtedly made it clear that a woman entering a hotel room with a man does not imply her consent to sex. It cannot be argued that if a man dares to have sex with a woman without her consent, then he must be made to pay for it and be tried and, if convicted, be ready to spend time in prison! What is most noteworthy in this leading case to be considered by us is that the woman cried immediately and not after a few years or a few months or a few days she cried. Her prompt complaint against forced intercourse must be given the highest priority, which the Goa Bench has very commendably done in this lead case and directed the trial court to frame charges against the accused. So the accused now has no choice but to stand trial and prove that the sexual act was consensual, and if he fails he will have to spend time in jail! Do not deny!