Kerala High Court: R. Narayana Pisharadi, J., held that passive submission made by the victim under unavoidable circumstances as she had no other option is not consent. While clarifying the difference between consent and submission, the Bench expressed,
“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 appellant-accused had challenged the judgment of the Trial Court by which the accused was convicted for the offences under Sections 366A and 376 of the Penal Code, 1860 and under Section 3 read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).
The prosecution case was that the victim girl, who was aged 17 years, had eloped with the accused, a bus cleaner in which the victim used to travel often. The victim contended that she was in love with the accused, who had induced her to elope with him and threatened her of committing suicide in front of her house if she did not go with him. The accused took her to Mysore; they stayed in a lodge where the accused committed forcible sexual intercourse with her. The medical report revealed that there was no evidence of recent sexual intercourse but there was evidence of past penetration.
Consent
“True, the victim has admitted that she was in love with the accused and that she knew that eloping with him would create problems. But, it does not mean that it was with her consent that the accused her to Mysore. Her evidence shows that he made a threat that if she did not go with him, he would commit suicide in front of her house.”
Considering the statement of the victim that the accused had forcibly undressed her and that when she cried he closed her mouth with his hand, the Bench opined that the testimony of the victim clearly showed that it was against her will and without her consent that the accused committed sexual intercourse with her. The Bench added,
“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.”
Although, the prosecution failed to prove that the victim was minor at the time of the incident, the Bench opined that even if it was assumed that the victim was more than 18 years of age, it could not be a ground to hold that she was a consenting party to the sexual intercourse as helplessness in the face of inevitable compulsion could not be considered to be consent as understood in law.
Claim of Juvenility
The accused had produced the extract of the school admission register kept in the school in which the accused first attended, to substantiate his claim of juvenility. According to the said document, the date of birth of the accused was 12-08-1996, hence on the date of the incident the accused had completed seventeen years of age and he was below eighteen years. Therefore, as on the date of the alleged incident, the accused had completed seventeen years of age and he was below eighteen years.
Relying on Raju v. State of Haryana, (2019) 14 SCC 401, wherein the Supreme Court had ordered, “seeing that the appellant has already spent 6 years in imprisonment, whereas the maximum period for which a juvenile may be sent to a special home is only 3 years as per Section 15(1)(g) of the 2000 Act, we direct that the appellant be released from custody forthwith, if he is not required to be detained in connection with any other case.”, the Bench held that since as per Section 15 of the JJ Act, 2000, the maximum punishment that can be imposed upon a juvenile is to direct that he shall be sent to a Special Home for a period not exceeding three years and the accused had already undergone imprisonment for more than six years, the accused need not be directed to appear before the J.J. Board for receiving sentence.
Conclusion
Consequently, the appeal was allowed in part and it was ordered as follows:
- Conviction of the accused for the offence punishable under Section 3 read with Section 4 of the POCSO Act was set aside.
- Conviction of the accused for the offence punishable under Section 366A of IPC was altered to conviction under Section 366.
- Conviction of the accused for the offence punishable under Section 376 of IPC was is affirmed.
- The sentence of imprisonment and fine imposed on the accused was set aside.
The accused was directed to be released from custody. [Syam Sivan v. State of Kerala, 2021 SCC OnLine Ker 4307, decided on 17-11-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
Appearance by:
For the Appellant: Advocate George Renoy, State Brief
For the State: Advocate Ambika Devi S, Spl. PP