Being A Married Lady Accustomed To Sex Could Have Protested Or Resisted: Orissa HC Acquits Brother-In-Law Of Victim In Rape Case

The Orissa High Court has acquitted a man i.e., the brother-in-law of the victim in a rape case saying that being a married lady and accustomed to sexual intercourse, the victim could have protested or resisted the event if the same was without her consent.

A Single Bench of Justice S.K. Sahoo observed, “… medical examination report of the victim indicates that she did not protest or resist to the act committed by the appellant. Being a married lady and accustomed to sexual intercourse, if the act was without her consent, she could have protested or resisted and in that event, not only there would have been some injuries on the body of the appellant but also on her own body as well, since it was alleged to be a forcible intercourse.”

The Bench said that there was no resistance or protest to the act of the appellant when the husband of the victim discovered both the appellant and her in a compromising position.

Advocate Chandan Samantaray appeared on behalf of the appellant while Addl. Standing Counsel Manoranjan Mishra appeared on behalf of the respondent.

Factual Background -

The appellant preferred a plea against the Trial Court whereby it held him guilty of the offence under Section 376(2)(f) of the Indian Penal Code (IPC) and sentenced him to undergo rigorous imprisonment for ten years along with a fine of Rs. 5,000/-. It was alleged by the victim that when she was returning home at about 8 p.m. with her breast-feeding child, on the way, there was a jungle and while she passing through that jungle, the appellant who was her brother-in-law, committed rape on her.

It was further contended that as she was late in returning to the house, her husband came in search of her and noticed the aforesaid incident. Whereas, the defence plea of the appellant stated that he was a married person and after the death of his wife, he got another lady as a concubine, who had two children which was opposed to by the victim and her husband and hence, a false case was registered against him.

The High Court after hearing the arguments of both parties noted, “The doctor (P.W.14), who medically examined the victim a day after the occurrence, stated that there was no bodily injury present on the victim and there was no sign and symptom of recent sexual intercourse and there was no evidence of bleeding injuries. She further stated that blood group of the victim was ‘O+ve’.”

The Court further noted that whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances and that an inference as to consent can be drawn only based on evidence or probabilities of the case.

“Consent is stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of the act complained of. 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”, said the Court.

The Court added that a mere act of helpless resignation in the face of inevitable compulsion, acquiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be consent, as envisaged in law.

“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. … though the victim stated in her evidence that at the time of rape, her blouse got torn and bangles got broken but the seizure list of the wearing apparels of the victim marked as Ext.5 does not indicate that blouse of the victim was torn. Similarly the spot visit report indicates that no incriminating thing was found at the spot”, also observed the Court.

The Court held that the evidence of the victim that there was protest from her side and the appellant committed sexual intercourse by tearing her blouse is not acceptable.

“… the learned trial Court has rightly held in the impugned judgment that the human semen stain of group ‘B’ on the saya of the victim did not belong to the appellant. … 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”, also held the Court.

Accordingly, the Court allowed the jail criminal appeal, set aside the judgment of the Trial Court, and acquitted the appellant.

Cause Title- Sanu Munda v. State of Odisha

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