Gopi @ Saravan Vs State & Anr: Madras HC Defines Whether Or Not Rape Without Resistance Is Rape

Date of judgement:
23December 2021

Bench:
Justice D. Bharatha Chakravarthy

Parties:
Appellant – Gopi @ Saravanan
Respondents –
1. State rep. by
The Inspector of Police,
Kalasapakkam Police Station,
Tiruvannamalai District
2. Prabha

Subject

The concept of consent while committing any sexual act is the voluntary act of submission of one’s body while having the choice to stop the act at any point of time. In this judgement, the Madras High Court defines when an act would come under consensual sex.

Legal Provisions

• Section 376, Indian Penal Code (IPC), 1860–Sub section (1) Defines punishment for rape to be rigorous imprisonment for not less than 10 years which can extend up to lifetime imprisonment, along with fine. This is applicable to all except the following people, which is given in subsection (2): (a) if a police officer commits rape in these situations: (i) in the premises of his police station; (ii) in the premises of any police station; (iii) on a woman who is under his custody or under the custody of any subordinate officer to him; (b) if a public servant commits rape on a woman under his custody or under the custody of any public servant subordinate to him; (c) if a member of the armed forces employed under the Centre or State, commits rape on a woman in his assigned area; (d) if a person in charge of a remand home, place, jail or institutionstaking care of women and children, commits rape on a woman belonging to such remand home, place, jail or institutions; (e) if the member of a hospital commits rape on a woman within the premises of that hospital; (f) if a relative, guardian, teacher, or any other person who is in a position of trust commits rape; (g) if a person commits rape during communal or sectarian violence; (h) if a person rapes a pregnant woman; (i) omitted (j) if a person commits rape on a woman who could not give her consent; (k) if a person who is superior to the victim commits rape on her; (l) if a person commits rape on mentally or physically challenged woman; (m) if a person injures the woman gravely so as to cause disfiguration or loss in life; (n) if a person commits rape on the same woman repeatedly; then these people shall be subjected to rigorous imprisonment of 10 years, which can be extended to lifetime imprisonment, which means imprisonment for the rest of his life and not just 14 years, along with fine.
• Section 375, Indian Penal Code, 1860 – This section defines rape as an act committed by a man when he penetrates his penis or any other body part, or makes others do so, into the vagina, mouth, urethra, or anus of a woman, or manipulates, or puts his mouth on any of the above mentioned body parts in the following conditions: (i) without her consent; (ii) in spite of her unwillingness to do so; (iii) under duress (iv) if the woman believes that the man is her husband; (v) when she is under the influence of some substance (vi) with or without her consent when she is below 18 years (vii) unable to give her consent.
• Section 144-A, The Indian Evidence Act, 1872 – This section presumes that there was no consent in any sexual act if the victim says so in the court.

Overview

• On 02/01/2002, at 10 am, the prosecutrix went to the nearby land to graze her cattle, where the accused came and after talking to her, dragged her to the Teak farm belonging to Govind Vathiyar.
• In the Teak farm, the accused raped her and while raping her, he prevented her from making any noise.
• The brother of the prosecutrix saw them and the accused, on seeing him, ran away.He also threw a stone at the accused, but it rather hit his siter in the ear.
• After the incident, the prosecutrix gave her statement in the Kalasapakkam Police Station.A charge sheet was prepared and it was proposed that the accused committed rape under section 376 of IPC.
• The trial started under the Chief Judicial Magistrate/ Additional Sessions Judge under 376 (1) of IPC where the accused denied all charges levelled against him.
• On performing a medical test, the doctor said that there was a tear injury of 1cm in the private part of the victim and that the prosecutrix felt pain when her breasts were touched.
• The dentist determined the victim’s age to be 18-19 years.The radiologist determined the victim’s age to be 17-18 years.The accused was found to be potent and fit to have sexual intercourse.
• Traces of sperm were found in the underwear of the accused by the forensic team.
• The victim deposed in the court about the incident which was in coherence with what her brother had deposed.
• After hearing both the sides, the accused was convicted by the Trial Court.When this matter came up in the Appellate Court, the decision of the Trial Court was upheld, based on the witnesses and evidences.
• The defence quoted the case of Tameezuddin @ Tammu v. State of (N.C.T.) of Delhi, stating that in the absence of vaginal swabs taken, there should not be any conviction.The Appellate Court, in this regard, held that theinstant case was one of consent and did not involve the question of whether or not rape has been committed. Therefore, the absence of vaginal swabs makes no difference in the outcome of the case.
• When a criminal revision appeal was filed in the Madras High Court, the appellant side counsel proposed that the physical relationship between the prosecutrix and the accused was of consensual nature and when her brother saw this, he became angry and threw the stone at his sister.
• The defence counsel also proposedenmity between the accused and the brother of the prosecutrix, and that the prosecutrix was forced by her brother to lodge a false complaint against the accused.
• Counsel said that when the act was committed, the prosecutrix was above the age of 16 years, which was the then limit for consent for sexual intercourse to be regarded as rape, and since the whole act was consensual, it was not rape.
• Further, the counsel from the accused side said that while giving his statement, brother of the prosecutrix had said that he had witnessed the accused forcing himself on the prosecutrix, but when deposed, he said that he had not seen the actual act, therefore, he should not be believed.
• On the absence of consent, counsel said that there was no violent resistance from the prosecutrix, neither did she create any alarm. Furthermore, it was deposed by the prosecutrix that the act went along for 10-15 minutes and thus, this was a consensual act.
• The prosecution said that, in cases which come under section 376 of IPC, only proper deposition of the victim is required for conviction.
• In this case, victim’s statement had been in coherence with her brother’s, apart from all the medical and forensic evidences. Thus, it was proved beyond doubt that the accused had done the offence.

Issues

• Whether the act of sexual intercourse was consensual, since there was no physical and violent resistance?

Judgement Analysis

• The High Court observed that, though the prosecutrix went along with the accused when he dragged her, she wanted to and tried to shout for help, while he was forcing himself on her, but she was overpowered by the accused, who supressed her shouts.
• The Single Judge Bench said that there is no single strong evidence which can counter what the victim had deposed in the court and thus, quoting section 144-A of the Indian Evidence Act, 1872, he said that in situations such as these, it is the word of the victim which will be taken final. The defence merely stating that the act was consensual is not enough.
• Further, citing Rao Harnarain Singh & Ors. V. State, the court said that just the submission to her fate in the face of something which is inevitable is not consent.
• Consent means voluntary participation and conscious acceptance of doing any act which is proposed by another, only after weighing the pros and cons and identifying the consequences of such act.
• The Court noted that the presence of injury in the private part of the prosecutrix is indicative of the fact that the act was non-consensual and unless proved otherwise by the defence, the prosecution is right.
• Regarding the contradiction in victim’s brother’s statement, the Court held that there was no cross examination of the investigating officer in this matter and thus, it did not hold any value in the eyes of law.
• The minimum sentence under this section had been granted to the accused, which was 7 years when the offence was committed. However, seeing the special circumstances, a lesser punishment was prayed by the defence.
• The offence had occurred 19 years ago, in 2002 and now the accused is married with 2 children while the prosecutrix is no more.The accused was an alcoholic who had Alcohol Withdrawal Seizure / Multiple Neurocysticercosis and was undergoing treatment in the Government Medical College Hospital, Tiruvannamalai. The original medical documents were submitted and the photo copy was filed before the Court.
• In Shimbhu & Ors. V. State of Haryana, it was cited that mere passage of time or changes in the socio-economic conditions of the convict does not amount to any special reason to lessen the punishment for rape, therefore, the prayer was rejected.
• The Court also lamented over the time loss and mentioned that although the prosecutrix survived the offence, she died at an early age, still waiting for justice.
• The family of the convict, who had nothing to do with the offence will also have to suffer the consequences of the offence done by the convict almost 20 years ago.
• While quoting the Supreme Court in Shimbhu & Ors. V. State of Haryana, the Madras High Court pointed out that the primary objective of the Court to sentence the convict in cases as such these is to send a message to the society so as to reduce the number of crimes.
• Thus, the Madras High Court dismissed the Criminal Revision Petition filed by the accused and upheld the decision of the Appellate Court.

Conclusion

The fact that the prosecutrix had resigned to her fate and stopped to resist does not mean that there was consent by her to perform the act of sexual intercourse. Consent is given freely in affirmation through words or actions. It is having the choice to stop the act whenever wanted, the free will to choose between resistance and assent and nothing less. Mere failure to resist is not consent, but rather submission, and every consent requires submission but it is not true the other way round. The difference between the two was pointed out by the hon’ble Madras High Court.

This provision has been added in the Indian Penal Code by the 2018 amendment, but for cases such as these, a proper interpretation of the IPC is required to grant justice.

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