The Madras High Court confirmed a rape conviction after stating that the act could not be considered consensual merely because the victim did not violently resist the accused.
Factual background
The order was passed pursuant to an appeal made against an order of Sessions Judge, who had confirmed the conviction of the petitioner for the offence under Section 376 of the Indian Penal Code and a sentence of seven years with a fine of Rs. 500.
Case of the Accused
The accused contended that he and the victim were in a physical relationship and when her brother, who had enmity with the accused accidentally, saw them, he compelled the victim to frame a false case against the accused. It was further submitted that the victim did not make any violent resistance to rescue her from the clutches of the accused, nor she did raise any alarm and therefore the act was with consent.
Case of the Prosecution
The prosecution contended that usually the offences under Section 376 would be confirmed on the sole evidence of the prosecutrix, however, in the present case, the testimony of the victim was corroborated by her brother who witnessed the offence.
Observation of the Court
The Court, while rejecting the argument of the accused that there was consent due to lack of resistance, discussed the judgment of the Punjab and Haryana High Court in Rao Harnarain Singh and others v. State wherein it was observed that “every consent involves a submission but the converse does not follow and the mere act of submission does not involve consent”.
The Bench was of the opinion that in this case, the 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 the 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. Observing the same, 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.
“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.
Case Details
Before: Madras High Court
Case Title: Gopi Saravanan v. State
Coram: Hon’ble Mr. Justice D.Bharatha Chakravarthy
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