Cardinal Issue In Rape Case Is Whether Initial Act Was Consensual Or Forcible Act
P J Mathew vs State of Kerala
Criminal Appeal 1654 of 2010
About/from the judgment:
‘The fact that there was a solitary incident and was not followed by repeated acts also goes against any conclusion that the act was consensual.’
The Supreme Court recently upheld the conviction of a rape accused even though it noticed the admission made by the mother of the victim that the FIR was filed only when the accused had failed to pay the cost of the abortion.
The bench of Chief Justice Ranjan Gogoi, Justice Sanjay Kishan Kaul and Justice KM Joseph observed that the cardinal issue that has to be decided in a case like this is whether the initial act was consensual or a forcible act.
PJ Mathew was accused of raping a girl aged about 16 years who lived in his neighborhood. The victim’s mother and the wife of the accused were friends. Though the alleged incident happened in January 1996, it was the case of the prosecution that the mother came to know about pregnancy only in May-June, as the victim was missing her periods. The girl delivered a premature child, which did not survive long.
The explanation for the delay was that the prosecutrix and her family did not want to spoil the reputation or bring disharmony in the family of the accused who were well-known to them. It was also stated that the complaint was filed only after the accused refused to provide funds for carrying out the abortion.
The trial court convicted the accused under Section 376 IPC and sentence of seven years rigorous imprisonment was awarded.
The high court view
The high court, in this case, had upheld the trial court judgment and had observed thus with respect to the statement made by the victim and her mother. “It was out of a feeling of guilt that P.W.1 told P.W.5 that a mistake occurred to her. That doesn’t mean that it was she who invited the accused to have sexual intercourse with her or that she was a consenting party to the same. Her statement only means that she had fallen a prey to the lewd design.”
Upholding the conviction, Justice V Ramkumar had observed: “The proved facts show that the accused is a neighbour of the victim and misusing his freedom in the house of P.W.2 he was exploiting the situation by satiating his carnal desire in P.W.1 who had only crossed 16 years on the date of occurrence. By no stretch of imagination can it be said that she was a consenting party to the erotic impropriety committed by the accused who was committing the offence after criminally trespassing into the house of P.W.1. taking advantage of the absence of her parents in the house at that time.”
Cardinal issue that has to be decided is whether the initial act was consensual or a forcible act
While dismissing the appeal, the three-judge bench observed: “Notwithstanding the delay in lodging the FIR and the admission made in the statement of the mother that the FIR was filed only when the accused had failed to pay the cost of the abortion, the cardinal issue that has to be decided is whether the initial act was consensual or a forcible act.”
The bench also added that the fact that there was a solitary incident and was not followed by repeated acts also goes against any conclusion that the act was consensual.
Upholding the concurrent convictions, the bench said: “The close relation between the families and the explanation given by the prosecutrix and her mother for the delay in lodging the FIR cannot be brushed aside. It is an incident that the prosecutrix, as stated in her evidence, wanted to forget and lead a normal life.”
Read the Judgment
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