'No Physical Resistance By Prosecutrix Won't Make The Act Consensual': Madras High Court Upholds Rape Conviction

Upholding a rape conviction by the trial court (Chief Judicial Magistrate) and the lower appellate court (Sessions Judge), Madras High Court, while dismissing the criminal revision petition of the accused, has held that lack of physical and violent resistance against the accused will not make the act as consensual. "The very fact that the victim did not physically and violently resist the accused will not make the act as consensual...One has to step into the shoes of the victim and see the entire episode from her perspective. She was a 17-year-old and was all alone. Yes, she walked along when was dragged by her hand. But, when the accused pushed her down and forced himself upon her. She wanted to and was trying to shout and resist, but, the accused and his acts prevailed", the court observed. According to the court, Section 375 of IPC undoubtedly lays down that if the act of the accused is against the will of the prosecutrix and against her consent, it would amount to the offence of rape. A single-judge bench of Justice D. Bharatha Chakravarthy observed that Section 90 of IPC is clear that consent shouldn't be born out of fear or misconception. Additionally, referring to Section 114-A of the Indian Evidence Act, the court notes: "As per Section 114-A of the Evidence Act, there is a presumption of absence of consent in the offense of rape if the victim deposes that she did not consent. To rebut this presumption, there must be positive evidence let in by the accused and mere absence of a valiant and violent effort on the part of the victim certainly does not amount to consent". Relying on the 1957 judgment of Punjab & Haryana Court in Rao Harnarain Singh & Ors. v. State, Madras High Court observed that 'submission' would not amount to 'consent'. Since the medical evidence on record revealed injury on the private part of the victim, the court also discarded the argument raised by the accused that the sexual act was the result of voluntary submission. The prosecutrix in the current case was subjected to rape as a 17-year-old while she was grazing cattle. During the commission of crime under Section 376 IPC, the brother of the prosecutrix accidentally happened to witness the incident and tried to physically confront the accused, as a result of which the latter ran away from the place. The brother was later added as one of the Prosecution witnesses. In the lower appellate court, the counsel for the accused tried to rely on Tameezuddin @ Tammu Vs. State of (N.C.T) of Delhi (2009) and tried to establish that conviction can be made only if vaginal swabs were taken. However, the Sessions Court rejected the argument of the accused since the question was the consent of the prosecutrix and the absence of procedure of vaginal swabs won't make any difference. The Chief Judicial Magistrate as well as the Sessions judge was convinced that the evidence of Prosecution witnesses, as well as the medical and forensic evidence unwaveringly, denotes the guilt of rape accused. In the High Court, the accused had raised a plea for reduction of sentence to less than the mandatory seven years as confirmed by the trial court. The accused contended that the offence occurred 19 years ago and the prosecutrix was no more. Additionally, the accused himself who has a family, became an alcoholic; he is currently undergoing treatment in government hospital. About imposing a lesser sentence, the court added: "Therefore, the question arises whether the condition of the accused and efflux of time can be considered as a special circumstance for imposing a sentence lesser than the minimum sentence. The Hon'ble Supreme Court of India in Shimbhu and Ors. Vs. State of Haryana (2013) , has categorically held that in respect of the offense of rape, the efflux of time or socio-economic condition of the accused cannot be 'special reason' to impose a lesser punishment than the minimum sentence." Further, the court went on to observe that though the prosecutrix survived the incident, she nevertheless died at a young age. "The direct and indirect impact of the crime on her body and mind cannot be ruled out. The accused being sent to jail at an early age, has since turned into an alcoholic and is very sick now at the age of 48. But the long arm of the law will reach him and land him into jail. In between he is also married and the poor wife and children have to face the social stigma, for no fault of theirs", the court stated. Relying on Shimbu, the court concludes that the primary objective of sentencing in the offence of rape is the deterrent message it gives to the society. As a result, the court confirmed the sentence passed by the trial court and the appellate court, which is 7 years of rigorous imprisonment along with a fine of Rs 500/-.Advocate S. Vediappan appeared for the petitioner accused while Government Advocate L. Bhaskaran appeared for the ...

'No Physical Resistance By Prosecutrix Won't Make The Act Consensual': Madras High Court Upholds Rape Conviction

Sebin James

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