Ker HC | Surrender can never be considered as consensual acts of sexual intercourse; Sexual intercourse welcomed could be accepted as “consensual”

Kerala High Court: P.B. Suresh Kumar, J., addressed a matter in which a 59 year old man was accused of raping a minor girl and the issue that has been dealt primarily in the matter is with regard to consent in the context of rape.

Conviction and Sentence of the appellant were challenged in the present appeal.

What is the accusation?

Accused had committed rape on a minor girl aged 14 years belonging to Scheduled Caste and impregnated her on various days.

Offences alleged were punishable under Section 376 of Penal Code, 1860 and Sections 3(1)(xii) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Decision of the lower Court

Court below on perusal of the record found that the accused had sexual intercourse with the victim girl and impregnated her.

Although the Court found that the prosecution did not prove the age of the victim girl and failed to establish that the case is one that falls under the sixth description in the definition of ‘rape’ in terms of Section 375 of the IPC as it stood then, it held that in the absence of any case for the accused that the sexual intercourse he had with the victim girl was consensual, the accused is guilty of the offence punishable under Section 376 of the IPC.

Point formulated for decision

Whether the prosecution established that the sexual intercourse between the victim girl and accused was without her consent?

Court noted that the present case was decided prior to the introduction of Section 114A of the Evidence Act.

Victim Girl’s deposition

While she was watching television, the accused sent his granddaughter away to a shop, closed the door of the house, pulled her to the adjacent room, made her lie down in a cot, removed her clothes and inserted his genital organ into her vagina after removing his clothes.

Understanding the concept of consent in the context of rape

Mere act of helpless resignation in the face of inevitable compulsion, quiescence, non- resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be ‘consent’ as understood in law and the consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent.

Sexual assaults including rape are crimes of gender inequality.

Court added to its conclusion that, in a country like ours committed to gender equality, only sexual intercourse which are welcomed could be construed as not violative of the rights of the victim, and accepted as consensual.

Accused was a fatherly figure to the victim girl, leaving apart the age factor there is was doubt with the class in which she was studying during the relevant period. She used to go the accused’s place for watching television and taking advantage of the situation accused had made sexual advances to her.

Accused’s case was only that the admitted conduct of the victim girl in going to the house of the accused as when desired by him subsequently would indicate that the latter instances of sexual intercourse were consensual.

Thus, Court in view of the above concluded that in a situation as was in the present matter, conduct on the part of the victim girl in surrendering before the accused as and when desired by him cannot be said to be unusual or abnormal and such surrender can never be construed as consensual acts of sexual intercourse. [Thankappan P.K. v. State of Kerala, 2020 SCC OnLine Ker 2587 , decided on 29-06-2020]

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