Prosecutrix Voluntarily Accompanied Accused To Jungle For Sex Despite Knowing He's Married: Orissa High Court Sets Aside Rape Conviction

The Orissa High Court has set aside the order of conviction passed against a rape accused observing that the victim of the offence used to accompany him regularly to a jungle and was keeping sexual relation with him despite knowing fully well that he is married.

While referring the sexual act to be consensual, the Single Bench of Justice Sangam Kumar Sahoo held,

“She was freely exercising her choice in accompanying the appellant deep into the jungle to have sexual act being conscious of the fact that their marriage was not possible. All the circumstances lead to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant and her consent was not the consequence of any misconception of fact.”

The father of the victim lodged an FIR stating that the victim, who was aged about seventeen years, used to go to the jungle for grazing goats every day and the appellant, who is a co-villager, also used to visit the jungle for the same purpose.

He alleged that by giving threat to the victim and also by alluring her, the appellant used to keep physical relationship with her for which she became pregnant for seven months as on the date of lodging the FIR.

It was also stated that the appellant was threatening the victim not to disclose such act before anybody or else she would have to face dire consequences for which she did not disclose about the incident even before her family members.

The trial Court acquitted the appellant of the charges under Section 3(2)(v) of the SC & ST (PoA) Act and Section 6 of POCSO Act. However, it found him guilty of the offences punishable under sections 376(2)(n)/506 of IPC. Being aggrieved by such order, he approached the High Court.

Court’s Observations

The Court, at the outset, examined the evidence so as to determine the age of the victim on the date of occurrence. It observed that though the school admission register was seized by the investigating officer, the same was not proved in the Court.

Further, though an ossification test was conducted on the victim, the x-ray plates were not produced before the Court. The doctor, however, opined that the victim would be aged between 16 to 18 years at the relevant time.

“However, for such test, the error margin of two years on either side is generally taken into consideration. Further, the X-ray plate has not been produced in the Court basing on which the ossification test report was prepared and if the variation would be taken into consideration on the higher side, the victim would be more than eighteen year,” the Court observed.

The Court again noted that the victim being a major girl seemed to be going with the appellant deep into the jungle and used to have sexual intercourse with him every day knowing fully well that the appellant was a married person having four children.

“She did not raise any objection to the act of the appellant nor even disclosed before anyone against the appellant about the sexual intercourse. The appellant never promised her to marry. She also knew that marriage with the appellant was not possible as the appellant was a married person having been blessed with children. Therefore, in my humble view, she was a consenting party,” the Court held.

The Court disagreed with the reasoning of the trial Court that the consent of the victim cannot be construed as a valid consent as she used to give it under the misconception of fact. It held that the victim was fully conscious of the fact that the appellant was a married person, having four children and her marriage with him was not possible.

“The consent of a woman under section 375 I.P.C. is vitiated on the ground of a misconception of fact where such misconception was the basis for her choosing to engage in the said act. The consent of a woman with respect to section 375 I.P.C. must involve an active and reasoned deliberation towards the proposed act. It must denote an active will in the mind of the woman to permit the doing of an act complained of,” the Court added.

Accordingly, the Court set aside the order of conviction passed against the appellant holding that the victim had consented to the sexual intercourse knowing fully well the consequences.

Case Title: Santanu Kaudi v. State of Odisha

Case No.: JCRLA No. 37 of 2019

Date of Judgment: July 5, 2023

Counsel for the Appellant: Mr. Akhaya Kumar Beura, Amicus Curiae

Counsel for the State: Mr. Priyabrata Tripathy, Addl. Standing Counsel

Citation: 2023 LiveLaw (Ori) 82

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