CRL.A NO. 986 OF 2019
DATE OF THE JUDGEMENT
17 November 2021
Justice R. Narayana Pisharadi
Appellant- Syam Sivan
Respondent- State Of Kerala
The Kerala High Court ruled that simply because the victim was in love with the accused does not mean she consented to sexual intercourse.
- Section 3 of POSCO Act defines what is penetrative sexual assault is.
- Section 4 of POSCO Act lays down the punishment for penetrative sexual assault (imprisonment for a term of not less than 10 years which may extend to life imprisonment and a fine)
- Section 366A of I.P.C lays down punishment for procuration of minor girl.
- Section 366 of I.P.C lays down provisions for kidnapping, abducting or inducing women to compel her marriage.
- Section 376 of I.P.C. lays down provision for punishment of rape.
- The victim, a 17-year-old girl, was in love with the accused. He was a cleaner who worked on a bus that she used to travel on frequently. In 2014, the accused persuaded her to accompany him to Mysore on the promise that he would marry her. He threatened to commit suicide in front of her house if she refused to go with him.
- They went to Mysore and resided in a lodge where the accused raped the victim. They then also went to Goa where they resided in a hotel the girl was again raped by him after that they came back to Mysore where also the accused committed rape on her.They returned home after a week.
- Meanwhile, the father of the victim girl had filed a missing woman report on the day she went to Mysore. On the day she came back, she was produced in the police station and it was revealed that the victim had been sexually assaulted by the accused.
- An investigation was conducted and a charge sheet was filed against the accused for the offences punishable under Sections 366A and 376 of the I.P.C and Section 3(a) read with Section 4 of the POCSO Act.
- The trial court found the accused guilty and convicted him under Sections 366A and 376 of the I.P.C and under Section 3 read with Section 4 of the POCSO Act. He was sentenced to imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/-.
- The accused appealed to the High Court challenging the conviction entered against and the sentence imposed on him by the trial court as above.
Following are the relevant findings-
Plea of Juvenility, Inquiry and Finding
- The counsel for the appellant contended that the appellant/accused was a juvenile at the time of commission of the offences alleged against him.
- On the basis of the extract of the school admission register kept in the school, in which the accused first attended,which was submitted by the appellant,the court was convinced that accused was a juvenile (17 years) on the date of commission of the alleged offences.
- The court noticed that, as per section 7A(2) of the JJ Act, if a court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Juvenile Justice Board for appropriate orders, and the sentence, if any, passed by the court shall be deemed to have no effect
- The court, however observed that 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. In the instant case, the accused has undergone imprisonment for more than six years and so there is no need to forward the accused to the J.J. Board for receiving sentence.
- Reliability of the testimony of the victim
- The court held that there is no reason to disbelieve the evidence of the victim girl and that her entire evidence in examination-in-chief with regard to the incident practically remains unchallenged.
- It was observed that her testimony clearly shows that the sexual intercourse was against her will and without her consent. Even assuming that she did not resist the act on subsequent occasions does not prove that she had given consent for having sexual intercourse. “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”, the court said.
- The court observed that just because there are no injuries on the prosecutrix's person does not imply that she consented or that the claim is false. It cannot be stated that anytime resistance is attempted, the victim's body must be injured in some way.
- The court held that there is no need for corroboration of her testimony and that there is an impression of truth in the evidence of the girl so it can be accepted even without corroboration.
Proof of age of the victim
- The proper proof needed for determining the age of a child who is a victim is the extract of the admission register from the school which was first attended by the victim. However, the prosecution could not produce this document and hence could not prove that the girl was a minor at the time of the crime.
- The court pointed out that even if the age of victim was not disputed by the accused, it was prosecution’s duty to prove her age.
- The consequence of this, the court said, was that the accused cannot be found guilty of any offence under the POCSO Act as the most significant element to attract offences under this act is the age of the victim.
No Proof of Consent
- The court observed that even if we assume the victim was more than 18 years of age, it cannot be a ground to hold that she was a consenting party to the sexual intercourse.
- The court observed the difference between consent and submission. “There is gulf of difference between consent and submission. Every act of consent involves a submission but the converse does not follow. Helplessness in the face of inevitable compulsion cannot be considered to be consent as understood in law.”
- Merely because the victim was in love with the accused, it cannot be presumed that she had given consent for sexual intercourse.
- Further, it was noted that the accused has the onus to prove that intercourse was consensual which he had failed to do in the present case.
- The court set aside the conviction of the accused by the trial court under Section 3 read with Section 4 of the POCSO Act since the prosecution could not prove the victim’s age.
- It was held that the conviction under section 366A of the I.P.C. is also set aside as the prosecution could not prove that the victim was a minor girl aged below 18 years at the relevant time.
- The accused was held liable to be convicted under Section 366 of the I.P.C as it was very well proved by the prosecution that the accused abducted PW3 with the intention to have sexual intercourse with her.
- Furthermore, the court affirmed the conviction under Section 376 of I.P.C. The court set aside the sentences of imprisonment and fine imposed on the accused by the trial court. The accused was ordered to be released from custody forthwith if he is not required to be detained in connection with any other case.
This distinction between consent and submission was much needed as it is generally assumed in our society that if the victim didn’t fight hard enough to show wounds, she must have been willing. This case also highlights prosecution’s negligence in submitting a concrete proof of the victim’s age which led to court setting aside conviction under POSCO Act.
Click here to download the original copy of the judgement
1. Which section of IPC lays down punishment for the offence of rape?
2. What is section 366 of I.P.C?