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Non-Resistance Is Not Equal To Giving Consent Says Patna High Court

Sravika Reddy Kohir ,
  29 June 2022       Share Bookmark

Court :
Patna High Court
Brief :

Citation :
Criminal Appeal (SJ) No. 1173 of 2017

Case Title:
Islam Mian Vs State Of Bihar

Date of Judgement:
22 June, 2022

Justice A.M.Badar

Appellant – Islam Mian
Respondent – state of Bihar


The Criminal Appeal in the present case was filed to challenge the order of sessions court, granting orders for committing the offence of rape and other offences. The scope of consent and the act of showing resistance were discussed and determined in this case.

Important Provisions


The section provides the definition of rape,it lays down circumstances and situations when a man is said to commit rape. One of the many clauses is that of if such an act is against the will or consent of the other it shall be concluded as the same has committed rape.


This section provides with the punishment for the offence of committing rape, which extends to rigorous imprisonment of 10 years or more upto life imprisonment and fine.


This section deals with offence of house trespass with an intention to hurt, attack, cause assault or wrongfully restrain any individual and the punishment for the same shall be imprisonment for 7 years and fine.


  • In the present case, the Appellant was convicted for the offences punishable under sections 376, 323, 452 and 506 of the Indian Penal Code as well as Section 3(1)(xi) and 3 (1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
  • The trial court then upon hearing the parties convicted the accused and punished for the above offences.
  • The Appellant filed for an appeal there by challenging the judgement of the Additional Sessions Judge.

Issues raised

Whether the act of non-resistance and non-appearance of injuries leads to consensual sex and does not commit rape?

Arguments advanced by the Appellant

  • It is argued by the counsel of the Appellant that the above case is that of a consensual sex and there were neither any injuries nor was any act of resistance to the act of the Appellant.
  • It was also argued that there was no corroborative evidence from the medical officer to act upon this way by granting the Judgement and Order.
  • The Evidence on record were also not supporting the case of prosecution and it cannot be called out for conviction and sentence.
  • Further also claimed that the A.P.P. has also supported such an impugned Judgement and Order.

Arguments advanced by the Respondent

  • The Respondent countered the arguments of Appellant by stating that the Respondent was in a condition where she couldn’t or it was not possible for her to offer resistance to the Act of the Appellant and the same non offering of resistance would not amount to consent.
  • Further also contended that it was also given in the Proviso of section 357 that mere non resistance of such an act physically by woman does not lead to giving consent.
  • Also, the fact that the Appellant was tied to the tree after the act, proves that he committed rape on her.
  • It was also contended that no Evidence on record supported that the case was of consensual sex between two adults.

Judgement Analysis

  • The Patna High Court observed that when a rape is committed the consent of the party determines the gravity of the offence and in here mere non resistance shall not lead to consent. The Court looked into all the provisions of the sections and based the judgement upon them.
  • The court also held that in cases of rape the value must be given to the victim if the same is trustworthy and the thing about injuries or any such things though if not been able to found and the same being corroborative by medical evidence is not necessary.
  • The court thus observed with available Evidence on record that appellant is partly allowed with the appeal with respect to offences under Section 323, 506 of the Indian Penal Code, Section 3(1)(xi) and 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act as there were no Evidences on record for the same.
  • The court thus relying upon the Evidence on record provided by the Respondent convicted the Appellant for the offences punishable under section 376 and 452.


After making the above observations, the Patna High Court has partly set aside the appeal and convicted the Appellant for the offences above mentioned. The court directed that non-resistance of the act does not lead to giving consent for the same andit was also further highlighted that it does not mean that the consent was given or it was a consensual sex between two adults if there are no physical injuries.

Learn the practical aspects of CrPC HERE, CPC HERE, IPC HERE, Evidence Act HERE, Family Laws HERE, DV Act HERE

Click here to download the original copy of the judgement

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