Accused Exercising Right Of Silence Not Bound To Prove Consent Was Taken When Prosecution Is Unable To Prove Rape: Karnataka HC

The Karnataka High Court has said that there is no duty on the accused to prove a defence of consent in a matter of rape, and his exercise of his right to remain silent would be sufficient where the prosecution itself is unable to prove its case.

The court said that as the right of the accused to remain silent would fasten the burden on the prosecution to prove absence of consent during sexual intercourse; if it fails to discharge such burden, the case of the prosecution would fall on its own weight. If prosecution does not discharge the burden beyond reasonable doubt it would make the accused entitled to acquittal, it added.

A division bench of Justice S Sunil Dutt Yadav and Justice Ramachandra D Huddar held thus while allowing an appeal and setting aside a 2014 order of conviction and sentenced handed down to one Khaja Hussain. He was charged for offences under IPC Sections 447(Punishment for criminal trespass), 366(A)(Procuration of minor girl), 376(rape), 506 (Punishment for criminal intimidation) and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

As per the prosecution case on October 21, 2009 when complainant and other family members were sleeping in the farmhouse, the accused trespassed into the house, threatened the victim of doing away with her life if she opened her mouth, kidnapped her on a motor-cycle, took her to another person's farmhouse and confined her from October 21-25, 2009. It was alleged that during that period the accused forcibly raped her knowing well that she was a minor and belonged to Scheduled Caste.

During the trial the accused did not take up any defence of consent of the victim and the response given to questions put to him under Section 313 of CrPC, was merely one of denial.

The provision of rape under section 375 of IPC prior to amendment prescribed that an essential element is that a man is said to commit rape who has sexual intercourse with a woman; “firstly - against her will; secondly – without her consent; thirdly.—with her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt …; sixthly – with or without her consent when she is under sixteen years of age".

The high court then said, “The right of the accused to remain silent by itself may have the effect of casting the burden on the prosecution to prove that the sexual intercourse was one without consent.”

Stating that in the present case prosecution did not claim that offence falls within the category of Section 376(2) (Aggravated forms of rape), the absence of presumption under Section 114A of Indian Evidence Act, would lead to placing the burden on the prosecution to establish absence of consent.

The court said, “Once such burden is fastened on the prosecution and the prosecution fails to discharge such burden, the case of the prosecution would fall on its own weight. There is no corresponding obligation on the accused to prove that there was consent which would result in fastening an onerous burden on the accused to prove that he was innocent which is contrary to the premise of presumption of innocence of the accused.There is no duty of the accused to prove a defence and his exercise of his right to remain silent would be sufficient where the prosecution itself is unable to prove its case”.

It added “Once such burden of the prosecution has not been discharged, then the accused is entitled for acquittal as a result of the prosecution failing to discharge its burden beyond reasonable doubt.The right to remain silent would obviate the necessity of the accused to take a positive stand that there was consent. There was no legal obligation to set up the defence of consent by the accused. Accordingly, even without accused taking a stand regarding consent, the inherent contradictions regarding absence of consent that is required to be asserted by the prosecution may result in failure of the case of the prosecution to prove beyond reasonable doubt, leading to accused getting the benefit of doubt.”

Examining the evidence of the prosecution witnesses in respect of the allegation of rape, the court referred to Rule 12 of Juvenile Justice Rules, which pertains to the documents that could be relied for the determination of the age.

Observing that prosecution relied on school leaving certificates issued not by the first school attended by the victim and the transfer certificate, these documents do not fall within the documents contemplated under Rule 12(3) (a) (i), (ii) & (iii) to prove age.

The court said “It can be stated that the prosecution has failed to prove that the age of the victim is below sixteen years so as to avail the benefit of absence of consent in case the victim is below sixteen years”.

Noticing contradictions in the testimony of the victim about the way in which she was abducted by the accused from her house and non-examination of an individual in whose house the girl was illegally confined by the accused the court said, “The prosecution by not examining the said witness and not explaining reasons for not examining such a vital witness, an adverse inference is required to be drawn against the prosecution”.

Then it held, “The question of lack of consent which is necessary for the offence of rape itself is in serious doubt. If that were to be so, it can be stated that the prosecution has not proved the case beyond reasonable doubt”.

Allowing the appeal the court said, “The appreciation of evidence by the trial Court is faulty. The conclusion of the Court regarding consent of P.W.4 (victim) also requires to be differed with as the trial Court has heavily relied on the evidence of the Prosecutrix without noticing contradictions and inconsistencies”.

Case Title: Khaja Hussain AND State of Karnataka

Counsel for Appellant: Advocate R.S Lagali

Counsel for Respondent: Additional SPP Siddaling P Patil

Citation No: 2024 LiveLaw (Kar) 465

Case No: CRIMINAL APPEAL NO. 200109 OF 2014

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