Not resisting at first time of sexual assault amounts to pre-consent: Madras High Court while acquitting rape accused

The Madras High Court recently acquitted a man accused of rape upon finding that the complainant had not resisted at the first time of the alleged sexual assault, which the Court opined in this case amounted to pre-consent (Chinnapandi v. State)..Pertinently, in this case, the Court found that:The accused and the alleged victim had been in a relationship and had also cohabited together for some months; The accused had promised the victim that he would marry her and, as per the prosecution, upon such promise he had sexual intercourse with her; The victim insisted on a quick marriage when she became pregnant whereas the accused was not ready to marry at the time and insisted she get an abortion instead; The woman filed a complaint alleging that the accused had raped her and criminally intimidated her after he disowned his promise to marry; On the date of occurrence of the alleged incident, both persons were major i.e. the complainant was 19 years old whereas the accused was 21 years old. .Justice R Pongiappan of the Madras High Court further observed that an affair had been continuing between the complainant and the accused for a year and that there was no evidence given to indicate that the accused had promised to marry the complainant within any specific timeline. .As such, the judge ruled that the woman had given pre-consent for the sexual act. ."Therefore, the non-raising the resistance at the time of committing the sexual assault as from first time by the accused, it amounts to pre-consent. Accordingly, the consent given by the victim girl, cannot be held as a misconception of fact," the Court said..The Court also expressed reservations over the genuineness of the allegations made by the complainant given that she was stated to have got her menstrual period a little under a month after the alleged rape incident. "It is the case of the prosecution that due to the sexual assault committed by the accused, the prosecutrix became pregnant. In otherwise, in respect to the date on which the alleged occurrence had happened, PW1 (prosecutrix/ complainant) has stated in her evidence that the alleged occurrence had happened on 07.05.2009. Therefore, if the evidence by the prosecutrix is found correct, there was no change for her to reach the menstrual period after 07.05.2009, but in respect to the same, the Doctor, who examined the victim girl has stated in her report (Ex.P4) as last menstrual period is 03.06.2009. Therefore, the said circumstances create a doubt whether the PW1 had lodged a complaint with true averments. Yet another thing, which is necessary to decide in this appeal is that PW1 had complained about the act committed by the accused only on 24.07.2009", the Court observed. .The judge proceeded to overturn the trial court's conviction and acquitted the man of all charges. .Whereas allegations of dowry demands were levelled by the complainant against the parents of the accused, those charges had already been set aside by the trial court earlier. .[Read Judgment]