Orissa High Court upholds acquittal in rape case, says victim's continuing relationship was an act of promiscuity

The Orissa High Court recently upheld the acquittal of a man who was accused of rape on the pretext of marriage, while observing that the victim’s continued sexual relationship with the accused man until she got pregnant was an “act of promiscuity” and not a result of consent given under misconception..Justice Chittaranjan Dash also remarked that there was “neither any hue and cry nor there was any resistance” from the side of the victim when she was allegedly first subjected to sexual assault by the accused..The Court concluded that the victim was an adult at the time of the incident and that the claim that she was only 16 years old at the time had not been established through evidence. “She being a full grown girl, consent to the act of sexual intercourse on a promise of marriage and continuance of her indulgence in such activities until she became pregnant is an act of promiscuity on her part and not an act of inducement by misconception of fact so as to bring it within the mischief of Section 90 IPC,” said the Court.Section 90 of the Indian Penal Code (IPC) nullifies the consent given under fear or misconception of fact. .No more 'slut', 'chaste', 'fallen' women of 'easy virtue' in court judgments: The Supreme Court handbook on gender stereotypes.In the present case, which dated back to 1996, it was alleged that the victim was raped by her neighbour. When she opposed the sexual abuse, he is said to have promised to marry her and continued with the “relationship." However, the victim later became pregnant and the man allegedly backed out of the promise to marry.The victim's family then approached the trial court which took cognizance of the case after an enquiry into the matter under the provisions of the Code of Criminal Procedure. In 1997, the trial court acquitted the accused. It also held the victim to be an adult. This led to filing of the present appeal by the victim’s mother (appellant) before the High Court in 1998. .Though the counsel representing the appellant had later sought permission to withdraw the appeal, the request was rejected by the Court. On merits, it was submitted that the victim and her mother of the victim had consistently and coherently spoken about the alleged incident. The trial court ought not to have held that the alleged act of the accused was consensual, the counsel representing appellant argued..However, the High Court affirmed the trial court’s finding that the victim’s delay in disclosing the incident to her family created “doubt” about her “conduct."The Court also reasoned that the houses of the accused and victim were close to each other. As such, had there been any hue and cry or resistance from her, it would have drawn the attention of the people in their neighbourhood, the Court opined. “Admittedly, the victim has brought it to the notice of the mother and the brother after about six months of the incident though she continued to have the cohabitation without any hesitation and resistance,” it added..Finding “no infirmity” in the findings of the trial court, the High Court dismissed the appeal.“The impugned Judgment being in consonance with law and evidence is confirmed,” it said..Advocate BP Tripathy represented the appellant.Advocate S Patra represented the State..[Read Judgment]