PATNA: If a rape victim does not fight back or has injuries to show as evidence, it doesn't mean that she had consented to the sexual act, the Patna High Court said, while hearing a petition against a lower court order.
Hearing a 2015 case, where a woman was dragged to a room, pinned on the floor, and raped, the high court said last week that its still cannot be called a consensual sex between two adults if the "version of the rape survivor is found reliable and trustworthy by the trial court."
Justice AM Badar, while rejecting an appeal of one Islam Mian alias Md Islam, reiterated that the contents of section 375 of the Indian Penal Code (IPC) makes it clear that consent must be in the "form of an unequivocal voluntary agreement showing willingness to participate in the sexual act."
"The proviso clause of Section 375 IPC 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," Justice Badar said.
The court found no infirmity in the version of the victim who was examined in the trial court as prosecution witness. The victim, who was a labourer working in the brick kiln of the appellant and was residing in a village in Jamui district, on April 9, 2015, demanded her wages at the end of the working day.
She was told that the payments would be made later and on the same night, when the victim was cooking in her house, the accused came, asked the whereabouts of her son. He later dragged her into another room and after bolting the doors pressed her mouth to keep her silent and raped her.
After the victim raised an alarm, the villagers came to her rescue. An FIR was lodged the next morning and she identified the spot of the crime before the police.
The High court further observed that the victim in her cross examination had said that her husband was out of station for earning livelihood and her son was just four-years old
"Hence in such circumstances, it might not be possible for her to offer resistance to the criminal act of the appellant," the court said.
The court affirmed the lower court's judgment where appellant was held guilty of rape and criminal trespass respectively under sections 376 and 452 IPC and the sentences of 10 years of rigorous imprisonment ( RI) and fine of Rs10,000 (six months further imprisonment in default of fine) for rape and two years rigorous imprisonment for criminal trespass.
The accused however was acquitted of the charges of committing the offences of voluntary causing hurt (section 323 IPC) criminal intimidation (section 506 IPC) and charges of offences under SC &ST (prevention of atrocities) Act.
