|IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION|
2017-02-10Bail Application No 1504 of 2016J. Mrs.MRIDULA BHATKARDevrath Prashant Dubey vs The State of MaharastraIPC 376, 376D
Consent of Drunk Woman For Sex Invalid. Every Yes is not Yes.
(1) In the case of rape, intoxication cannot be an excuse. If a girl is intoxicated, it means mentally she is not capable to give a free and conscious consent. In a case of rape, when a woman says 'No' for sexual intercourse, it means she is not willing; similarly when she says 'Yes', it should be free and conscious 'Yes'. Not every 'Yes' is covered under the valid consent. Under section 375 of the Indian Penal Code, in the definition of 'rape' the words used are 'against her will' o and 'without her consent'. The term 'without her consent' has a wider meaning and covers a broader area of her wish to have sexual intercourse. If a woman is under intoxication/influence of liquor or any drug, then even though she gives consent, it is not a consent. On the other hand, act of rape committed under influence of drug or liquor is not covered under the iexceptions under the Indian Penal Code and that argument is not available to the accused. While reading Section 375 of the Indian Penal Code, one has to refer to definition of consent under section 390 of the Indian a Penal Code wherein it is specifically mentioned that consent given when b a woman is intoxicated is not a consent. Similarly, along with to section understand 90, it is that necessary under to intoxication refer to section if rape 85 is of committed, the Indian Penal it is not Code an excuse for a man.
(2) Considering the rising number of rape cases, genuine or false, and after coming across the incidents wherein young lives are ruined due to ignorance of law, I am constrained to observe that the young generation needs legal education and it is to be impressed upon them that Criminal Jurisprudence and the Indian Penal Code are largely based on human psychology, social norms and moral values in order to maintain peace and harmony in the society.DOWNLOAD | GOOGLE DOCS | VIEW