Patna High Court: While dealing with a case of rape, A M Badar, J. observed that mere non-offering of physical resistance by a rape survivor cannot amount to the consent given by a woman for sexual activity under Section 375 of the Indian Penal Code (‘IPC’).
An appeal was filed under section 374 of the Criminal Procedure Code (CrPC) challenging the conviction order given by the trial court for offences under Sections 376, 323, 452, and 506 of the Penal Code, 1860 (‘IPC’) and Sections 3(1)(xi) and (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), 1989.
The accused alleged that it was consensual sex between two adults and in the medical examination, no physical injuries were found on the body of the prosecutrix, therefore, indicating the absence of resistance.
As per the story of the prosecutrix, she used to work in the brick Klin of the accused as a laborer. On 09.04.2015, after completing her work, the prosecutrix demanded her wages. The accused refused to pay the wages stating that he would pay her subsequently. In the evening hours, when the prosecutrix was cooking food, the accused came to her house, dragged her to a room, and raped her. The villagers got gathered as the prosecutrix shouted and the accused was tied to a tree. Subsequently, an FIR was lodged against the accused.
As per the statement of the victim as well as submissions made, the Court opined that, the present case is a rape case and therefore in such cases the version of the prosecutrix is found more reliable and trustworthy. Further, the Court stated that the statements of the prosecutrix should not necessarily be corroborated by medical shreds of evidence.
The Court also observed that the prosecutrix is a married woman having a son aged about 4 years. She was pitted against an adult male in the late night at her own house. In such a situation, it might not be possible for her to offer resistance to the act of the accused. Moreover, mere non-offering of resistance cannot amount to consent.
At this juncture, the Court visited the provisions under Section 375 of IPC and stated that that consent must be in the form of an unequivocal voluntary agreement showing willingness to participate in sexual acts. Further, the Court stated that the Proviso clause of Section 375 of the IPC makes it clear that only because a woman does not physically resist the act of penetration, it cannot be regarded as consenting to the sexual activity.
Further, the Court noted that the acts of the prosecutrix during the incident, firstly by shouting and secondly, registering an FIR against the accused denotes that there was nothing on record to suggest the case of the consensual sex between two adult persons. Therefore, the Court was of the view that by entering the house of the prosecutrix, the accused had committed rape on her.
Hence, the Court upheld the conviction of accused under Sections 376 and 452 of the IPC. It was however noted that there was no substantive evidence in support of the commission of offences under Sections 323 and 506 of the Indian Penal Code as well as under Sections 3(1)(xi) and 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Hence, acquitted the accused for those charges and partly allowed the application.
[Islam Mian @ Mohd. Islam v State of Bihar, 2022 SCC OnLine Pat 1579, decided on 22-06-2022]
Advocates who appeared in this case :
Mr. Diwakar Upadhyaya, Advocate, for the Petitioner;
Mr. Bipin Kumar, A.P.P., Advocate, for State.