Kerala HC: Submission, In The Face Of Inevitable Compulsion Is Not Consent

KEY TAKEAWAYS

The Kerala High Court observed the difference between ‘consent’ and ‘submission’ and held that simply because the victim was in love with the accused, it cannot be said that she had given consent for sexual intercourse.

DETAILS.

• In this case, the victim, a 17-year-old girl, was in love with the accused who worked as a cleaner in a bus that she used to travel frequently.
• He persuaded her to come to Mysore with him by blackmailing her that he would commit suicide in front of her house if she refused.
• So, they went to Mysore and the accused raped the victim. They came back after a week. Meanwhile, father of the girl had lodged a missing woman complaint in the police station. When she came home, she was produced in the police station where it was revealed that she had been sexually assaulted.
• The trial court convicted the accused under under Sections 366A and 376 of the I.P.C and under Section 3 read with Section 4 of the POCSO Act. He was given the sentence of imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/-. The accused then appealed to high court of Kerala.

COURT PROCEEDINGS

• On the contention of the appellant that he was a juvenile at the time of the crime, the HC accepted documents submitted by him and concluded that he was 17 when the crime took place. However, the court observed that there was no need to forward the accused to the J.J. Board as the accused had already served 6 years in prison and the maximum punishment that can be imposed on a juvenile is of 3 years.
• On the question of reliability of the victim’s statement, the court held that there is no need for corroboration of her testimony and that there is an impression of truth in the evidence of the girl so it can be accepted even without corroboration.
• It was observed that her testimony clearly shows that the sexual intercourse was against her will and without her consent. Even assuming that she did not resist the act on subsequent occasions does not prove that she had given consent for having sexual intercourse. It was observed that what the girl did was passive submission under unavoidable circumstances as she had no other option and did not amount to consent.
• On the issue of the proof of victim’s age, the court pointed out that the proof submitted by the prosecution is insufficient and hence it cannot be proved that the girl was a minor at the time.
• The court observed the difference between consent and submission. “There is gulf of difference between consent and submission. Every consent involves a submission but the converse does not follow. Helplessness in the face of inevitable compulsion cannot be considered to be consent as understood in law.”
• Merely because the victim was in love with the accused, it cannot be presumed that she had given consent for sexual intercourse, said the court.

JUDGEMENT OF THE COURT

• The High Court set aside the conviction of accused under POSCO Act since the victim could not be proven to be minor at the time of crime.
• The court affirmed conviction under section 376 of I.P.C and held that accused is liable to be convicted under Section 366 of the I.P.C as it was very well proved by the prosecution that the accused abducted the girl with the intention to have sexual intercourse with her.
• The court set aside the sentences of imprisonment and fine imposed on the accused by the trial court. The accused was ordered to be released from custody forthwith if he is not required to be detained in connection with any other case.

QUESTIONS

• What does section 376 and 366 IPC say?
• What is POSCO Act?

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