"Gulf of difference between consent and submission:" Kerala High Court upholds rape conviction

In a significant judgement that grazes upon the concept of enthusiastic consent, the Kerala High Court recently held that there is conspicuous difference between 'consent' and 'submission to compulsion' to have sexual intercourse. (Syam Sivan v State of Kerala).Justice R Narayana Pisharadi held so while partly allowing an appeal and upholding a rape conviction. In the order, the Court distinguished between the two oft overlapping concepts of consent and submission to sexual intercourse as follows:"There is gulf of difference between consent and submission. Every consent involves a submission but the converse does not follow. Helplessness in the face of inevitable compulsion cannot be considered to be consent as understood in law. Exercise of intelligence based on the knowledge of the significance and the moral effect of the act is required for consent.".Every consent involves a submission but the converse does not follow.Kerala High Court.The Court also stated that being in love with a person does not mean that the survivor had consented to intercourse."Merely for the reason that the victim was in love with the accused, it cannot be presumed that she had given consent for sexual intercourse," the Court said..The Court issued the order on an appeal filed by a man who had been convicted by a trial court for offences punishable under Sections 366A (procuration of a minor girl) 376 (rape) of the Indian Penal Code IPC) and Sections 3 and 4 of the Protection of Children from Sexual Offences (POCSO) Act..Factual BackgroundThe survivor had testified that she had been in love with the accused- appellant but that she had not agreed to have sexual intercourse with him and that he had forcibly undressed and assaulted her while covering her mouth to muffle her cries.The girl was supposedly 17-years-old at the time and had met the accused on a bus that she used to travel frequently. The accused then allegedly compelled her to travel with him to Mysore going so far as to threaten to commit suicide in front of her house if she did not do the same.While they were in Mysore, the accused allegedly raped her.At the same time, her father had filed a missing persons case and upon her return when she was produced before the police station, she disclosed that the accused had raped her.Subsequently a first information report (FIR) was registered and the accused was booked and found guilty by the trial court.Thereafter, he approached the High Court by way of the present appeal..Factors considered by the Court.ConsentThe Court referred to Section 375 the IPC which states that consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. The Court noted that it is also provided that a woman not physically resisting the act of penetration shall not by the reason only of that fact, be regarded as a consenting party to the sexual activity.Moreover, the Court held that it is not for the victim to show that there was no consent. The question of consent is really a matter of defence by the accused and it is for him to place materials to show that there was consent..Testimony of SurvivorThere is no reason to disbelieve the evidence of the survivor, the Court said.It observed that her entire evidence in examination-in chief with regard to the incident practically remained unchallenged, even in cross examination.Even though she has admitted that she was in love with the accused and that she knew that eloping with him would create problems, the Court opined that it does not mean that it was with her consent that the accused took her to Mysore. "The testimony shows that it was against her will and without her consent that the accused committed sexual intercourse with her for the first time at the room in the hotel. Even if it is assumed that, on subsequent occasions, she did not resist the act of the accused, it cannot be found that it was with her consent that the accused had sexual intercourse with her. It can only be found that it was a passive submission made by the victim girl under unavoidable circumstances as she had no other option", the Court said..Medical evidenceThe evidence of the doctor that there was no indication of recent sexual intercourse was rejected by the Court as it noted that the doctor had examined the survivor over a week after the incident occurred. Moreover, going by the judgement of the Supreme Court in Balwant Singh v State of Punjab, the Court held that "absence of injuries on the person of the prosecutrix does not lead to an inference of consent on her part or falsity of the allegation. It cannot be said that whenever resistance is offered there must be some injury on the body of the victim.".Ages of Accused and Survivor Advocate George Renoy, who represented the accused, raised a plea of juvenility and submitted documents to show that he was a minor at the time of committing the offence.The Court accepted this argument upon perusing the documents and noted that the requirement under Section 7(A)2 of the Juvenile Justice(JJ) Act for the court to forward cases to the Juvenile Justice Board is unnecessary now as the accused has already been imprisoned for 6 years when the maximum sentence that can be imposed on a juvenile is that he can be sent to a care home for a maximum of 3 years..Regarding the age of the survivor, the Court noted that the prosecution had failed to establish her age as required by law to establish offences under the POCSO ACT.In Jarnail Singh v. State of Haryana, the Supreme Court held that, proper proof for determining the age of a child, who is a victim of a crime, is the extract of the admission register from the school which was first attended by the victim.Following the above decision, in Alex v State of Kerala, a Division Bench of the Kerala High Court Court had also held that, the document produced to prove the date of birth or the age of the child victim, shall be the certificate from the school which the child first attended. This view was reiterated by the Division Bench in Santhosh v. State of Kerala..Penile penetration into any body part manipulated to feel like orifice is rape: Kerala HC upholds conviction for penetration between thighs.However, the Court said that even if it is assumed that the victim was more than 18 years of age, it cannot be a ground to hold that she was a consenting party to the sexual intercourse..The Court therefore set aside the trial court's conviction of the accused under the POCSO Act as well as Section 366(A) of the IPC.But it held that the accused is liable to be convicted under Section 366 (Kidnapping, abducting or inducing woman to compel her marriage, etc.) of the IPC.It also upheld the trial courts conviction under Section 376 IPC but the sentences of imprisonment and fine were set aside and the accused was directed to be released from custody.[Read Judgment]