‘Being a married woman and accustomed to sexual intercourse, she could have protested or resisted’: Orissa HC while setting aside conviction u/s 376(2)(f)

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Orissa High Court: In a jail criminal appeal against the Judgment of Trial Court wherein the accused was found guilty of the offence under Section 376(2)(f) of the Penal Code, 1860 (‘IPC’), S.K Sahoo*, J. allowed the appeal and acquitted the accused of the charge under Section 376(2)(f) of the IPC.

Factual Background

In the matter at hand, an FIR was lodged against the accused by the victim, stating that on 15-03-2014, while the victim was returning back home at about 8 p.m. with her breast-feeding child, the accused, who is her brother-in-law, committed rape on her.

Subsequently, the Trial Court found that sufficient evidence were adduced against the accused and accordingly, the accused was found guilty under Section 376(2)(f) of the IPC and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5,000.


The Court analysed the evidence of the victim and her husband, and it was found that the accused is the younger brother of the victim’s husband. Therefore, the Court said that the accused being the ‘brother-in-law’ of the victim would come within the category of ‘relative’ as mentioned under Section 376(2)(f) of the IPC, which prescribes punishment for commission of rape on a woman by an accused, who is either relative, guardian or teacher or a person in a position of trust or authority towards that woman.

The Court analysed the victim’s statement, wherein it was stated that when her husband came searching for her, she kicked the accused and then the accused fled away from the spot. On basis of the statement of the victim’s husband, it was found that the victim had slapped the accused, when her husband reached to the spot. The Court noted that however, the husband of the victim did not hear any noise raised by the victim at the spot. The Court also examined the doctor’s report, who medically examined the victim a day after the occurrence, and it was stated that there was no bodily injury present on the victim and there was no sign and symptom of recent sexual intercourse.

Therefore, on basis of the medical examination report of the victim, the Court said that the victim did not protest or resist to the act committed by the accused and stated that “being a married woman and accustomed to sexual intercourse, if the act was without her consent, she could have protested or resisted and in that event, not only there would have been some injuries on the body of the accused but also on her own body as well, since it was alleged to be a forcible intercourse”. The Court also added that it appeared that there was no resistance or protest when the husband of the victim discovered both the accused and the victim in a compromising position.

Regarding the question that whether there was consent or not, the Court explained that Consent is stated to be an act of reason coupled with deliberation, it denotes an active will in the mind of a person to permit the doing of the act complained of. The Court stated that if the victim, who is a grown-up woman and having experience of sex, fails to offer sufficient resistance to the accused who was attempting to have sex with her single-handedly, the Court may find that there was no force, or the said act was not against her will. Of course, a mere act of helpless resignation in the face of inevitable compulsion, acquiescence, non-resistance or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, it cannot be deemed to be consent, as envisaged in law. The Court said that in the present case, the evidence indicated that in order to save her own skin, the victim manipulated the occurrence as if the accused was committing rape on her.

The Court also found that no incriminating evidence was found at the spot during the investigation and the victim had stated that her blouse got torn and bangles got broken, however the seizure list of the wearing apparels of the victim did not indicate that blouse of the victim was torn.


The Court set aside the impugned judgment and held that since the victim was a consenting party, the conviction of the accused under Section 376(2)(f) of the IPC was not sustainable in the eye of law and therefore, the accused was acquitted of the charge under Section 376(2)(f) of the IPC. The Court directed the forthwith release of the accused who was in judicial custody.

[Sanu Munda v. State of Odisha, 2023 SCC OnLine Ori 5335, Decided on 19-07-2023]

*Judgment Authored by: Justice S.K Sahoo

Advocates who appeared in this case :

For the accused: Advocate Chandan Samantaray;

For the respondent: Additional Standing Counsel Manoranjan Mishra.

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