'Submission' In Face Of Inevitable Compulsion Not 'Consent': Kerala High Court Upholds Rape Conviction

In a significant judgment, the Kerala High Court on Wednesday held that there is a substantial distinction between 'consent' and 'submission' to sexual intercourse. 

Partly allowing an appeal, Justice R. Narayana Pisharadi observed: 

"Merely for the reason that the victim was in love with the accused, it cannot be presumed that she had given consent for sexual intercourse."

The Court was considering an appeal filed by a man convicted by the trial court under Sections 366A (Procuration of minor girl), 376 (Rape) IPC and Sections 3 and 4 of the POCSO Act for sexually assaulting the defacto complainant.

The survivor had testified indicating that it was without her consent that the accused had sexual intercourse with her for the first time. She stated that the accused forcibly undressed her when she refused to undress on his demand and covered her mouth when she cried.

At this juncture, the Court clarified: 

"There is a 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. Exercise of intelligence based on the knowledge of the significance and the moral effect of the act is required for consent."

Factual Background:

The case of the prosecution was that the victim, reported to be 17 years old, was then in love with the accused, who worked a cleaner in a bus she used to travel frequently.  

In 2013, the accused apparently induced her to accompany him to Mysore with a promise to marry her. He threatened her that if she did not go with him, he would commit suicide in front of her house.

Accordingly, they left for Mysore and resided together in a lodge, where the accused raped the girl. After a week, they returned back home.

It was also testified by the survivor that after the incident, she could not contact the accused.  

Meanwhile, her father had lodged a missing person case before the police station. Upon her return, she was produced before the Police Station where she disclosed that she was sexually assaulted. 

Following an investigation, an FIR  was immediately registered and a charge sheet was filed against the accused. The trial court found him guilty and sentence him to rigorous imprisonment for ten years.

As such, he approached the High Court with an appeal. The appellant took the plea of juvenility claiming that he was a minor at the time of committing the offence. 

Relevant Findings:

• Plea of Juvenility: 

Upon perusing the school admission register produced by the accused, the Court was convinced that on the date of the incident, he was aged 17; a juvenile. 

As per Section 7A(2) of the JJ Act, if the court finds a person to be a juvenile on the date of commission of the offence, it shall forward the juvenile to the Juvenile Justice Board for passing appropriate order, and the sentence passed by a court shall be deemed to have no effect.

However, the Court noted that it was not necessary to forward the accused to the JJ Board for the reason that as per Section 15 of the JJ Act, the maximum punishment that can be imposed upon a juvenile is that he shall be sent to a Special Home for a maximum of three years. In the instant case, the accused had already undergone imprisonment for more than six years. 

• Prosectrix's Testimony 

The Court found no reason to disbelieve the evidence of the victim girl, and that there was no rule of law that her testimony cannot be acted without corroboration in material particulars. 

"Assurance, short of corroboration as understood in the context of an accomplice would do," the Judge observed.

Since the evidence given by the prosecutrix in examination-in-chief with regard to the incident practically remained unchallenged in the cross-examination, there is no need for corroboration of her testimony, the Court said.

"There is an impression of truth in the evidence of PW3. It can be accepted even without corroboration."

• No Proof Of Consent 

The testimony of the prosecutrix clearly established that she did not consent to the accused having sexual intercourse with her. 

"Even if it is assumed that, on subsequent occasions, she did not resist the act of the accused, it cannot be found that it was with her consent that the accused had sexual intercourse with her. It can only be found that it was a passive submission made by the victim girl under unavoidable circumstances as she had no other option." 

The Court also noted that the absence of injuries on the person of the prosecutrix does not lead to an inference of consent on her part or falsity of the allegation. It cannot be said that whenever resistance is offered there must be some injury on the body of the victim.

The Court further noted that the onus to prove that the sexual intercourse was consensual was on the accused and that in the present case, the appellant had failed to do so. 

• Proof of Victim's Age

It is a legally accepted principle that the date of birth of a child victim has to be proved through the certificate from the school the child first attended. However, the prosecution had failed to submit this document as evidence of her age. 

"Even if the accused had not disputed the age of the victim, the prosecution has the duty to prove her age," the Court said.

The Court added that the consequence of not proving the age of the victim girl is that the accused cannot be found guilty of any offence under the POCSO Act or for the offence under Section 366A IPC (Procuration of minor girl).

"The age of the victim is the most significant and basic element to attract the offences under the Act and unless it is established by the prosecution by adducing positive evidence, the provisions under the Act cannot be pressed into service." 

• Sentence:

As such, the Court set aside the trial court's conviction of the accused under Section 3 read with Section 4 of the POCSO Act.

The Bench also noted that since the prosecution could not prove that the victim was a minor girl aged below 18 years at the relevant time, the conviction of the accused by the trial court under Section 366A of the I.P.C is also liable to be set aside.

However, the accused is liable to be convicted for an offence under Section 366 (Kidnapping, abducting or inducing woman to compel her marriage, etc.) of the I.P.C. 

The trial court's conviction under Section 376 IPC was affirmed. The sentences of imprisonment and fine imposed on the accused by the trial court were set aside.

The accused was directed to be released from custody forthwith if he is not required to be detained in connection with any other case. Accordingly, the appeal was partly allowed. 

Advocate George Renoy represented the appellant in the matter while Special Public Prosecutor Ambika Devi S appeared for the respondents.

Case Title: Syam Sivan v. State of Kerala & Anr.

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