Not resisting rapist doesn't mean survivor consented to the act: Patna High Court

In a significant ruling, the Patna High Court last week held that absence of physical resistance on the part of a rape survivor does not mean that she consented to the act [Islam Mian @Md Islam vs State of Bihar]..The argument that the sex was consensual since there weren't any physical injuries on the survivor indicating absence of resistance, was rejected by single-judge Justice AM Badar. "The prosecutrix is a married woman having a son aged about 4 years. She was pitted against an adult male in the night hours at her own house. In such situation, it might not be possible for her to offer resistance to the act of the accused. Moreover, mere non offering of resistance cannot amount to consent," the Court held..In his judgment dated June 22, Justice Badar noted that Section 375 (rape) 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."Proviso clause of Section 375 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," the judge said.The Court was seized of a criminal appeal taking exception to judgment of a sessions court passed on March 9, 2017 convicting the appellant under charges of Sections 376 (rape), 452 (house trespass), 323 (voluntarily causing hurt) and 506 (criminal intimidation) of the Indian Penal Code (IPC). He was also convicted under relevant provisions of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act.The sessions court had imposed a sentence of 10 years rigorous imprisonment on the appellant..By way of background, the survivor used to work in the brick klin of the appellant as a labourer. On April 9, 2015, after finishing her work, she asked for wages from the appellant but he refused to give the same saying it would be given later. On that night, while the survivor was cooking in her house situated in a village in Jamui district, the appellant barged in, dragged her into a room and raped her. However, due to her hue and cry, villagers nabbed the convict and tied him to a tree. Subsequently, a First Information Report (FIR) was lodged.The bench, while scrutinising the material on record, noted that the victim's testimony was reliable and was also corroborated by other witnesses.The Court, therefore, upheld the appellant's conviction under charges of rape and house trespass. It, however, noted that the material fell short to establish a case under Sections 323 (voluntarily causing hurt) and 506 (criminal intimidation) of IPC and offences under the SC/ST Act and therefore, acquitted him of those charges..Advocate Diwakar Upadhyaya appeared for the appellant while the State was represented by Additional Public Prosecutor Bipin Kumar.[Read Judgment]