Absence Of Physical Resistance Does Not Amount To Consent: Madras HC

• While upholding the decision of the Trial Court and the lower appellate court, the Hon’ble Madras HC has reiterated what the Hon’ble Supreme Court has reiterated many times, that the absence of physical resistance in rape cases does not, of itself, turn the woman from a victim to an accomplice.
• The Court, in the present case of Gopi @ Saravanan vs State and Anr. the Hon’ble Court, while referring to Section 114A of the Indian Evidence Act said that there is a presumption to the effect that the court will presume that the victim did not consent, if she says that she did not consent. To rebut the same, the defence will have to lead cogent evidence on their part which shows the presence of the prosecutrix’s consent. Incidentally, merely because the victim did not violently protest against the same does not signify her consent.
• In the instant case, the victim was subjected to rape at the age of 17 years, which was witnessed by her brother, who also tried to confront the accused. He was later examined as the prosecution witness.
• The trial court as well as the Sessions Court, in light of the medical and forensic evidence and also the statement of the prosecution witness(brother) were convinced of the guilt of the accused. He was thus sentenced to undergo 7 years of rigorous imprisonment.
• The HC relied on the judgement of the Punjab and Haryana HC in the case of Rao Harnarain Singh and Ors. vs. State in which it was held that “mere submission does not amount to consent”.
• The accused had also pleaded for a reduction in the sentence, contending that the prosecutrix was no more and that the offence occurred 19 years ago. The accused also has a wife and kids who would suffer on no fault on their own. The Court, relying on the judgement of the Hon’ble SC in the case of Shimbhu and Ors. vs. State of Haryana in which the court has categorically stated that “in the offence of rape, the efflux of time or the socio-economic condition of the accused cannot be ‘special reason’ to impose a lesser punishment than the minimum sentence.”
• Thus, the Court confirmed the sentence passed by the lower court, that is rigorous imprisonment of 7 years and a fine of Rs.500.

And now, a question for our aspirants-
Absence of consent in rape cases has been provided under which section of the Indian Evidence Act?