Consent Obtained By Threat Immaterial, Not Valid U/S 90 IPC: Gauhati High Court Upholds Conviction For Rape

The observation came from Justice Rumi Kumar Phukan who said that even if she was a major, in the given circumstances the consent is immaterial:

"In the given case, the victim was kept under threat and compulsion to stay with the accused petitioner, which cannot be termed as a consent within the purview of Section 90 IPC. Even if she is held to be major also, such a consent itself immaterial."

Facts:

On 19 May,2009, the victim/daughter of the informant Pradip Das who is a student of Class-IX did not return home after attending school examination, at about 2.30 P.M. Her father/informant made searches of her in the school premises and came to know that the accused petitioner Bhairab Das has abducted the victim girl in a black Indica vehicle and fled away. Immediately after the occurrence, father of the victim lodged an FIR against the petitioner, which was registered as Morigaon P.S. Case No.89/2009 under Sections 366-A IPC.

During the course of investigation, victim girl was recovered. The accused Bhairab Das surrendered before the court and after completion of the investigation, charge sheet was submitted against the accused petitioner under Sections 366-A/376 IPC. The Trial Court convicted the accused petitioner under Section 366/376 IPC. He is sentenced to R/I for 4(four) years under Section 366 IPC along with a fine of Rs.2,000/-, in default S/I for 2(tow) months. He is also sentenced to R/I for 5(five) years under Section 376 IPC and to pay fine of Rs.2,000/-, in default S/I for 2(two) months.

He preferred an appeal Sessions Judge, Morigaon, where the court upheld the Trial Court's order. Aggrieved by the same he moved High Court.

Petitioner argued that

• 1)the victim was major and the learned court had wrongly arrived at a finding that the victim was minor ;
• 2)The age of the girl was not proved by prosecution properly, and the guardian/parents of the victim, also could not proved the date of birth of their daughter/victim girl;
• 3)According to the M.O., the age of the victim is 15 to 16 years and her age can be varied by adding two years on either side;
• 4)The FIR which is on record is the second FIR and the earlier FIR that was filed is not proved. Hence, the prosecution case is doubtful;
• 5)The uncorroborated testimony of the victim, even not supported by the medical officer, is not safe to rely in order to sustain conviction.
• 6)Referring to the conduct of the victim, it has been stated that she voluntarily accompanied the accused person and stayed with him for several days without any protest, which indicates, that no offence was committed by the accused and medical evidence also does not reveal the factum of sexual intercourse upon the victim girl;

Amicus Curiae Advocate Tiwari urged the court to consider the case in hand in the light of the decision in Anversinh @ Kriansinh Fatesinh Zala vs. State of Gujarat, wherein Supreme Court in a similar fact situation, where the victim accompanied the accused to several places without protest, has reduced the sentence to the period already undergone by the accused.

Addl. P.P. Advocate B. Sarma vehemently argued that the contention raised by the petitioner, that the victim herein is minor and a student of Class-IX, her age was duly proved by her parents as well as by the medical officer and her age has also been proved by the school authority from the school register. He further argued that there is no occasion to ask for further proof as regard the age. So far as regard the decisions/citations referred by the petitioner's side, it is contended that the same is not applicable in the present case in hand, there is nothing to disbelieve the statement of victim. It was stated that minor consent is no consent, even her long stay with the accused is considered.

After perusing the evidence on record, the court observed that it proves the complicity of the petitioner which lends support to the statement of the victim girl. It also reveals from their evidence that the accused is a married person which has also been admitted by the accused himself in his statement under Section 313 CrPC.

Coming to the question on age, the court said that the prosecution case does not solely depend upon the evidence of medical officer to prove the age of the victim but her age has been proved by her parents as well as the school authority. So, the medical evidence which is mere opinion cannot prevail over and above the other evidence on record.

While dealing with consent, the court relied on the judgement pronounced by the Supreme Court in Satpal Sing v State of Haryana, wherein it was held that a woman has given consent only if she has freely agreed to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted.

"Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to, it always is a voluntary and conscious acceptance of what is proposed to be done by the another and concurred in by the former. An act of helplessness in the face of inevitable compulsions is not consent in law. More so, it is not necessary that there should be actual use of force. A threat of use of force is sufficient." Court said.

With regard to medical reports the court said:

"The medical report although has suggested that there is no sexual intercourse, but other findings on clinical examination where the vaginal hymen was found absent is also suggestive of such sexual intercourse. The M/O in his cross-examination has stated that when spermatozoa presents in the vaginal smear and there is evidence of fresh injury in the vaginal part, then it is recent sexual intercourse. The victim was kidnapped on 19.05.2009 and her medical examination was done on 03.06.2009, and as such, finding of no sign of recent sexual intercourse will not negate the entire prosecution case."

In view of the above, the court accepted the submissions of the prosecution and dismissed the review petition.

Case Title: Sri Bhairab Das v. The State of Assam

Citation: 2022 LiveLaw (Gau) 30