Not resisting rapist doesn’t mean survivor consented to act: Patna High Court

REUTERS/Cathal McNaughton

The Patna High Court last week made a major decision, holding that a rape survivor’s absence of physical resistance does not mean that she consented to the act, reported Bar and Bench.

The argument that the sex was consensual since there weren’t any physical injuries on the survivor indicating the absence of resistance, was rejected by single-judge Justice AM Badar.

“The prosecutrix is a married woman having a son aged about 4 years. She was pitted against an adult male in the night hours 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,” the Court held.

The Indian Penal Code (IPC), Section 375 (rape), makes it clear that consent must take the form of an unequivocal voluntary agreement showing a willingness to participate in the sexual act, Justice Badar said in his judgment dated 22 June.

“Proviso clause of Section 375 makes it clear that only because a woman does not physically resist to the act of penetration, it cannot be regarded as a consenting to the sexual activity,” Bar and Bench quotes the judge as saying.

The Court was seized of a criminal appeal taking exception to the judgment of a sessions court passed on March 9, 2017, convicting the appellant under charges of Sections 376 (rape), 452 (house trespass), 323 (voluntarily causing hurt), and 506 (criminal intimidation) of the Indian Penal Code (IPC).

He was also convicted under relevant provisions of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act.

The sessions court had imposed a sentence of 10 years rigorous imprisonment on the appellant.

The survivor was a laborer who previously worked in the appellant’s brick klin. After completing her labor on April 9, 2015, she asked for wages from the appellant but he refused to give the same saying it would be given late.

That evening, as the survivor was preparing dinner in her home in a village in the Jamui district, the appellant barged in, dragged her into a room, and sexually assaulted her.

Although, due to her hue and cry, villagers nabbed the convict and tied him to a tree. Subsequently, a First Information Report (FIR) was lodged.

While reviewing the evidence, the bench noted that the victim’s testimony was credible and supported by other witnesses.

Therefore, The appellant’s conviction for rape and house-trespass was consequently upheld by the court.

The Court upheld the appellant’s conviction under charges of rape and house-trespass. It, however, noted that the material fell short to establish a case under Sections 323 (voluntarily causing hurt) and 506 (criminal intimidation) of IPC and offenses under the SC/ST Act and therefore, acquitted him of those charges, according to the legal website.