Non-resistance at time of sexual assault from first time by accused amounts to victim's pre-consent

Non-resistance at time of sexual assault from first time by accused amounts to victim's pre-consent

Chinnapandi Vs State of Madras

Madras HC

10/08/2021

Crl.A.(MD)No. 211 of 2016

About/from the judgment:

"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 High Court observed that the non-raising the resistance by the Victim at the time of committing the sexual assault as from first time by the accused would amount to pre-consent of the Victim and therefore, the consent so given can't be held as a misconception of fact.

The Court was dealing with an appeal filed to set aside a man/accused conviction under Sections 376 of IPC who allegedly promised to marry the victim, however, didn't fulfill the promise.

Facts in brief

The accused and the prosecutrix are residing in the same village and previous to the occurrence, both fell in love and the same continued for a period of one year and in the evening hours they regularly met.

When at the time, the prosecutrix requested the accused to marry her, the accused made a promise to marry her, but at the same time the accused made a demand to fulfill his lust.

Consequentially, in May 2009, the accused, allegedly, forcibly committed sexual assault on the prosecutrix and thereby the prosecutrix became pregnant, thereafter, in July 2009, when the prosecutrix requested the accused to marry her, he refused the proposal and asked her to abort the fetus.

Allegedly, even the parents of the victim girl requested the parents of the accused of performing the marriage between the victim girl and the accused, they demanded 10 sovereigns of gold and Rupees one lakh as dowry.

Even in the panchayat held in the village, the accused refused to marry the victim girl and so a complaint was lodged, the case was registered, the trial took place, and thereafter, the Additional Session Judge, Mahila Court, Madurai, found him guilty for the offence under Section 376 of I.P.C and accordingly, the appellant was convicted.

Arguments put forth

The counsel for the appellant/accused contended that the alleged occurrence had happened with the pre-consent given by the victim girl. and that during the relevant point of time, both the accused and the victim girl regularly met and continued their physical relationship.

Therefore, it was argued that the consent given by the victim girl was a pre-consent and therefore, convicting accused of the offence of Rape was not within the purview of settled law.

Court's observations

At the outset, the Court noted that the victim complained about the act after a lapse of 2½ months from the date of the occurrence and that she had specifically stated before the trial Court that after she fell in love with the accused, they regularly met in the garden and developed their relationship.

On this occasion, the Court opined, the act of the prosecutrix clearly revealed the fact that she submitted herself on carnal pleasures of accused on the promise of marriage.

Further, the Court noted that on the date of occurrence, the prosecutrix and the accused/appellant were major and nowhere it was found in the evidence that the appellant had given any definite date or any timeline to marry the prosecutrix.

Also, noting that the prosecutrix had complained about the issue to others only at the time the appellant has disowned his promise, the Court remarked thus:

"The said circumstances reveals the fact that during the relevant point of time, the prosecutrix was also willing and the accused had also promised to marry her once after the completion of his brother's marriage. Acting on such assurance, the prosecutrix started cohabiting with the accused and the same was continued for several months during which period the accused spent most of the evening hours with her. Eventually, when she conceived and insisted that the marriage should be performed as quickly as possible, the appellant suggested for abortion. Since the proposal was not accepted by the prosecutrix, the appellant disowned the promise and ultimately, the case has been registered."

Against this backdrop, the Court held thus:

"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 also expressed doubts in respect to the preparation of complaint by the victim as well as in respect to the evidence given by the Doctor, and therefore, allowing the Criminal Appeal, the conviction and sentence imposed on the appellant/first accused, was set aside and the appellant/first accused was acquitted of all the charges.

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