No resistance by rape victim won’t make act consensual

Holding that the act of having a physical relationship against the will and consent of the victim would amount to the offence of rape, the Madras High Court has made it clear that lack of physical and violent resistance against the accused will not make the act consensual.

Justice D Bharatha Chakravarthy held this ruling on dismissing a criminal revision petition filed by Gopi alias Saravanan, 48, who was sentenced to seven years of rigorous imprisonment with a fine of Rs 500, in default, to undergo one-month simple imprisonment for raping a minor woman in 2002. It is noted the victim is no more.

The petitioner challenged the verdict passed by a sessions judge, Tiruvannamalai in 2005 and the same was confirmed by the Chief Judicial Magistrate (CJM), Tiruvannamalai in 2014.

S Vediappan, counsel for the petitioner, submitted that the cross-examinations of the complainant proved that she did not make any serious attempt to rescue herself from the clutches of the accused nor did she raise any alarm. He further wanted the court to infer that the physical relationship was with consent.

However, the judge rejected such contentions stating that one has to step into the shoes of the victim and see the entire episode from her perspective. “The material evidence and prosecution reports are clear that the victim was trying to shout and resist, but, the accused and his acts prevailed. Upon reading Section 90 of the Indian Penal Code, it will be clear that there must be consent and such consent should not be out of fear or misconception. As per Section 114A of the Evidence Act, there is a presumption of absence of consent in the offence of rape if the victim deposes that she did not consent,” the judge held while upholding the verdict of the lower court.