If grown-up woman with experience in sex does not offer resistance, it may not be against her will: Orissa High Court

The Orissa High Court recently acquitted a man who was accused of raping his sister-in-law, noting that the woman, being a married adult with prior sexual experience, did not resist the allegedly forceful act..Justice Sangam Kumar Sahoo observed that being a married lady who was accustomed to sexual intercourse, the woman could have protested or resisted the act if she did not consent to the same.“If the victim, who is a grown up lady and having experience of sex, fails to offer sufficient resistance to the accused who was attempting to have sex with her single-handedly, the Court may find that there was no force or the said act was not against her will,” the judgment stated.The Court went on to clarify that a mere act of helpless resignation in the face of inevitable compulsion, acquiescence, non-resistance or passive giving in, when volition is either clouded by fear or vitiated by duress, cannot be deemed to be consent..If the act was without consent, there would have been some injuries on her person as well as on the body of the accused, since it was allegedly forcible intercourse, the Court said.However, in this case, the Court found that there appeared to be no such resistance on the woman's part. "The evidence on record indicates that in order to save her own skin, the victim manipulated the occurrence as if the appellant was committing rape on her," the Court went on to say..The woman alleged that she was compelled to have sexual relations with the accused in 2014 when she was passing through a forest one evening on her way home. When she did not return home, her husband went searching for her and discovered her in a compromising situation with the appellant in the forest. Upon seeing her husband, the woman kicked the accused, causing him to quickly flee the scene, the Court was told. Subsequently, a first information report (FIR) was lodged. After the police completed the investigation, a trial court eventually found the accused liable for rape under the Indian Penal Code. This led the accused to file an appeal before the High Court..In its analysis, the High Court noted that the doctor who had conducted the medical examination of the woman a day after the alleged incident affirmed that there were no physical injuries on her body.Further, there were no indications or symptoms of recent sexual intercourse, or any evidence of injuries that caused bleeding, the Court observed..The Court found that there was sufficient medical basis for the trial court's finding that the human semen found on the victim's clothing did not belong to the accused. The fact that the woman did not appear to have objected to or opposed the alleged sexual advances by the accused led the Court to ultimately quash the case against the accused and allow the appeal. "Since the victim was a consenting party, the conviction of the appellant under section 376(2)(f) of the Indian Penal Code is not sustainable in the eye of law," the Court held. .Advocate Chandan Samantaray represented the accused while Advocate Manoranjan Mishra represented State..[Read Order]