Lack of violent resistance does not make act consensual: Madras High Court confirms rape conviction

The Madras High Court last week confirmed a rape conviction after stating that the act could not be considered consensual simply because the victim did not violently resist the accused [Gopi @ Saravanan vs. State]..Justice D Bharatha Chakravarthy explained that one must step into the shoes of the victim and see the entire episode from her perspective. “Mere absence of a valiant and violent effort on the part of the victim certainly does not amount to consent,” the order said..In this regard, the Court also adverted to Section 114-A of the Evidence Act which creates a presumption of absence of consent in the offence of rape if the victim deposes that she did not consent. o rebut this presumption, positive evidence is to be let in by the accused."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," the Court said..The order was rendered on an appeal of against an order of Sessions Judge Tiruvannamalai, who had confirmed the order of the trial court convicting the petitioner for an offence under Section 376 (punishment for Rape) of the Indian Penal Code and imposing a sentence of seven years Rigorous Imprisonment and a fine of ₹500..The accused argued that he and the victim were in a physical relationship and when her brother, who had enmity with the accused, accidentally saw them, he pressured the victim to lodge a false complaint.It was submitted that the victim did not make any serious attempt to rescue herself from the clutches of the accused, nor did she raise any alarm and therefore, the act was with consent..The prosecution contended that normally offences under Section 376 would be made out even based on the solitary evidence of the prosecutrix, but in this case, the testimony of the victim was corroborated by her brother who witnessed the offence..The Court, while rejecting the argument of the accused that there was consent due to lack of resistance, discussed the judgment of the Punjab & Haryana High Court in Rao Harnarain Singh and others vs. State where it was observed that, “every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent.”.Justice Chakravarthy opined that in this case, medical evidence on record even dispelled the argument of the victim’s voluntary submission.“Unless the defence is able to establish that the intercourse was one of free will and consent and rebut the presumption, the prosecution case stands proved... I find no infirmity whatsoever in the conclusions of the Trial Court as well as the lower Appellate Court, finding the accused guilty of the offence under Section 376 of Indian Penal Code.”.Apart from confirming the order of conviction, the Court also dealt with the imposition of sentence. The accused had sought the Court's discretion for the imposition of a lesser-than-minimum sentence for special reasons.It was submitted that the incident occurred 19 years ago when the accused was 29 years old; now he was 48 and married with two children. Further, the victim was no more, it was highlighted.It was also brought to the Court’s attention that the accused had become an alcoholic, had withdrawal seizures and was undergoing regular and constant treatment..“20 years down the lane after the commission of the crime, the case presents the grim aftermath of the crime,” said Justice Chakravarthy while commenting on the circumstances..In light of the judgment of the Supreme Court in Shimbhu vs. State of Haryana, in which it was held that for the offense of rape, the efflux of time or socio-economic conditions of the accused cannot be 'special reason' to impose a lesser punishment than the minimum sentence, the judge found himself unable to intervene on the aspect of sentencing..Yet, he observed that if only the accused had not committed the offence, both the parties' life in the village would have been peaceful.“The prosecutrix, even though survived the offense, and lived for many years thereafter, did pass away at an young age, pending disposal of this revision. 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 offence has everything to do with the corrupt mind of the accused not seeing the prosecutrix as another living being,” the Court observed..With these remarks, the plea was dismissed and the conviction and sentence imposed by the trial and appellate courts were confirmed..Advocate S Vediappan appeared for the petitioner and the State was represented by Government Advocate L Baskaran..[Read Order]