'Consent' As Per 7 Descriptions U/S 375 IPC Is Imperfect, 'Pushed To The Wall' Consent For Invasive Sexual Acts & Not An Informed Expression Of Free Will: Calcutta HC

The Calcutta High Court recently deliberated over the role of consent (or its absence) to constitute the offence of Rape as defined under Section 375 of IPC and punishable under Section 376 of IPC. 

Stressing that the predominance of "consent" (or its absence) is the defining feature of the offence of rape in section 375, the bench of Justice Moushumi Bhattacharya and Justice Ajoy Kumar Mukherjee observed that the 7 circumstances laid down under Section 375 deconstruct 'consent' more as a "pushed to the wall" consent, rather than an informed expression of free will.

"Rape, as defined in section 375, is not confined to physical acts of certain descriptions. The four acts explicit in their descriptions and disjunctive in sequence, must be read with an imperfect consent on the part of the victim woman so as to locate the acts within the underlying presumption of the offence of rape being an act of force and not a consensual act in which the victim is a willing participant being fully aware of the act and its consequences," the Judgment authored by Justice Moushumi Bhattacharya states.

Our readers may note that Section 375 (RAPE) of IPC enumerates four physical activities by a man which amount to "Rape", however, these four enumerations must fall within any of the seven descriptions which follow section 375(a)- (d). These seven circumstances are built around consent - or the lack of it-on the part of the victim.

The bench clarified that to constitute the offence of rape as per section 375 IPC, the foremost presumption is the absence of consent as expressed by the expressions "Against her will" and "Without her consent" in the first and second descriptions under section 375.

Further, the third to seven circumstances present a layering of the giving of consent where the consent was either obtained under the threat of death or hurt or the victim was misled into believing a set of facts that was either not true or was beyond the comprehension of the victim.

The case in brief

Essentially, the Court was hearing an appeal moved by the appellant (accused before the Court) against the order and judgment of the Special POCSO Judge, North and Middle Andaman sentencing him to imprisonment for 20 years for the offence under section 376 of the Indian Penal Code, 1860.

The appellant/accused was found guilty of committing rape on the victim, who was alleged to have been below the age of 18 years on the date of the occurrence of the incident. The prosecution case was that the accused person/appellant and the victim were in a physical relationship before the victim became pregnant. The victim initiated the case after the appellant refused to marry the victim. 

The accused was charge-sheeted under sections 5 and 6 of the POCSO Act as the girl was said to be a 'child' on the date of the incident. However, during the trial it came to light that the girl was a major on the date of the incident.

Court's observations

The Court, at the outset, noted that from the evidence of the victim (PW-1), Medical Officer (PW-4) and the Investigating Officer (PW-10), it was clear that the victim had crossed the age of 18 years on the date of occurrence has been established, therefore, the Court held that the appellant being charge-sheeted under sections 5 and 6 of the POCSO Act and the case being heard and tried by the Special POCSO Court, North and Middle Andaman, cannot and does not have any factual or legal basis.

Further, the court took into account the evidence put before it to note the fact that the physical relationship between the appellant and the victim was consensual at all times and none of the witnesses for the prosecution deposed to the contrary.

Therefore, the Court held that the evidence demolished all seven circumstances under section 375 under which the alleged offence is committed against the will of the victim or without her consent. With this, the Court opined that the alleged offence did not fall within the parameters of section 375 of the IPC.

Now, the only question that remained before the court was - whether the consent of the victim was given in her full senses without the consent being obtained through any of the seven descriptions under section 375.

At the outset, the Court took into account the statement of the victim that the appellant promised to marry the victim and entered into a physical relationship with her. Further, the Court went on to decide whether this particular statement of the victim fell within the fifth circumstance under section 375 (so as to constitute the offence of rape) that is to say - she was unable to understand the nature and consequences of that to which she gave her consent.

The Court opined that the victim being unable to understand the consequence of giving consent must be proved by evidence or by corroborating circumstances, however, in the instant case, neither the victim nor the prosecution witnesses (including the victim's mother) could prove that the victim had given her consent to a physical relationship with the appellant on the (mistaken) belief that the appellant would marry her.

"There is nothing in the evidence before the Court which would satisfy the last limb of the fifth circumstance of section 375. The victim as well as other witnesses of the prosecution have not discharged the onus of proving that the victim was made to give her consent to the physical relationship with the appellant either without understanding the nature of the physical relationship or the implication thereof, including the pregnancy," the Court consequently held.

The Court further added that it was never the victim's case that the victim was unable to understand the nature of the relationship with the appellant or the consequence of the relationship to which the victim gave her consent.

In view of the above reasons, the Court found the impugned judgment of the Special Court under the POCSO Act to be vulnerable to challenge on several counts. The impugned judgment dated 15.04.2021 of the Special Court was accordingly set aside. The appellant was discharged from his bail bond.

Case title - Suresh Tirkey v. The State

Case Citation:2022 LiveLaw (Cal) 297

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