MANU/KE/0655/1989

Equivalent Citation: 1989(2)KLJ234

IN THE HIGH COURT OF KERALA

Crl. A. No. 85 of 1989
Decided On: 13.07.1989
Appellants: Vijayan Pillai @ Babu
Vs.
Respondent: State of Kerala
Hon'ble Judges/Coram:
K.G. Balakrishnan, J.
Counsels:
For Appellant/Petitioner/Plaintiff: M.N. Sukumaran Nayar and B. Raman Pillai
For Respondents/Defendant: Public Prosecutor
Case Note:
Indian Penal Code 1860 See. 376--Consent for sexual Act - Relevant
aspects.Held : In order to prove that there was consent on the part of the
prosecutrix it must be established that she freely submitted herself while in
free and unconstrained position of her physical and mental power to act in
a manner she wanted. Consent is an act of reason accompanied by
deliberation, a mere act of helpless resignation in the face of inevitable
compulsion, non resistance and passive giving in cannot be deemed to be
"Consent". Consent means active will in the mind of a person to permit the
doing of the act of and knowledge of what is to be done, or of the nature of
the act that is being done is essential to a consent to an act. Consent
supposes a physical power to act, a moral power of acting and a serious and
determined and free use of these powers. Every consent to act involves
submission, but it by no means follows that a mere submission involves
consent.
JUDGMENT
K.G. Balakrishnan, J.
1. This is an appeal against the conviction and sentence entered against the appellant
in Sessions Case No. 84 of 1988 on the file of the Additional Assistant Sessions
Judge, Quilon. The accused was tried for the offence punishable under section 376 of
the Indian Penal Code. He was found guilty and sentenced to undergo rigorous
imprisonment for a period of 8 years. PW 1, Geetha, is the daughter of PWs 6 and 7.
According to the prosecution, PW 1 was 16 years old at the time of the incident. On
the date of occurrence PW 1 alone was in the house. PWs 6 and 7 had gone for doing
coolie work. The elder and the younger sisters of PW 1 were not in the house. In the
morning she went to Punalur market and purchased some fish and other household
articles. After coming home she was preparing food in the kitchen. According to PW 1
accused Babu came from behind and caught hold of her. The accused dragged PW 1
to the southern side of the room and there she was made to lie on the floor. The
blouse hooks were forcibly loosened. Her - skirt and other clothes were tucked upto

14-03-2019 (Page 1 of 5) www.manupatra.com BANARAS HINDU UNIVERSITY

her waistline and the accused committed rape on her. According to PW 1 she resisted
the assault, but she was not in a position to move. She felt pain over her abdomen
and private parts. After this incident she went to a nearby shop, from where her
parents used to purchase household articles. By about evening PWs 6 and 7 came,
PW 2 also was present. PWs 6 and 7 took PW 1 to the police station, where she gave
Ext. P1 statement. MOs 1, 3, 4 and 5 were given to the police.
2 . A case was registered against the accused under section 376 I.P.C. PW 16 took
over the investigation. He recovered the wearing apparels of the prosecutrix under
Ext. P6 mahazar. She was sent for medical examination. PW 16 also prepared a scene
mahazar. He recovered a blouse and 4 blouse hooks from the scene of occurrence
under Ext. P6 mahazar. MO 2 series are the blouse hooks. The accused was arrested
by PW 16. The clothes alleged to have been worn by the accused at the time of
incident were also taken into custody as per Ext. P7 mahazar. The accused was
examined by a doctor. Ext. P10 is the certificate in that regards.
3 . On the side of the prosecution PWs 1 to 16 were examined PW-1 is the
prosecutrix. PWs 2 and 3 are the neighbours who had seen the accused on that day.
PW 4 examined PW 1 and issued Ext P2 medical certificate. PW 5 examined the
accused. PWs 6 and 7 are the parents of PW 1. PWs 9, 10, 11 attested Exts. P5 to P7
mahazar respectively. PW 14, 15 and 16 are the police officers, who participated in
the investigation of the crime. The accused when questioned under section 313-
C.R.P.C. completely denied his involvement in the crime. According to him, he was
not present anywhere near the scene of occurrence. DW 1 was examined on the side
of the accused. DW 1 is the elder sister of PW 1. DW 1 deposed that on 1st March,
1988 she alone was in the house and PW 1 had gone out along with their parents.
The court below disbelieved the evidence of DW 1 and found that the accused had
committed rape on PW 1.
4 . The mainstay of the prosecution case is the evidence of PW 1 and the medical
evidence. The prosecution case is that PW 1 was only 16 years old at the time of the
commission of the act. However the prosecution could not adduce any satisfactory
evidence to prove that PW 1 was only a sixteen year old girl. PW 16, the Sub
Inspector did not take any serious steps to find out the age of PW 1. PW 1 had
studied upto 4th standard. This fact was made known to PW 16. He deposed that he
made some enquiries in this direction. He further deposed that he was told by the
Headmaster of the school that PW 1 was not a student in the school. PW 16 did not
verify the school register. This amounts to dereliction of duty. It may be remembered
that the Supreme Court in S. Ganguly v. State of West Bengal (MANU/SC/0049/1957
: AIR 1958 SC 143) held that the extract of school register is a conclusive proof to
show the age of the victim. Therefore, the court below has rightly observed that there
is no tangible evidence to show that the prosecutrix was a minor aged 16 years as
alleged by the prosecution.
5. As regards the occurrence there is the evidence of PW 1 supported by the evidence
of PWs 2 and 3, The testimony of PW 1 is further corroborated by the medical
evidence. PW 1 deposed that on the date of the incident she was preparing some
food in the kitchen and the accused came from behind and caught hold of her. She
also deposed that she was overpowered by the accused and was made to lie on the
floor. The hooks of the blouse were torn and her undergarments also were removed
forcibly. PW 1 also deposed that she was weeping and after the incident she came
out of the house and went to the nearby shop. PW 2 a neighbour, saw the accused
coming from the house of PW 1. PW 2 also saw PW 1. Then he asked PW 1 why the

14-03-2019 (Page 2 of 5) www.manupatra.com BANARAS HINDU UNIVERSITY

accused had come there. PW 1 did not give any answer. PW 3 is also a neighbour.
While she was sitting in the verandah she saw the accused coming from the side of
the house of PW 1. PW 3 also saw PW 1. The evidence of PWS 2 and 3 would show
that the plea of alibi set up by the accused is clearly false. In this regard the evidence
of DW 1 is also of Some importance. DW 1 is the sister of PW 1. The evidence of DW
1 would clearly show that she was motivated by some reason to give false evidence
in this case.
6. The evidence of PW 1 is fully supported by the medical evidence in this case. PW
4, the doctor attached to Kottarakkara Taluk Headquarters Hospital, examined PW 1
on 2-3-1988 at 2.15 a.m. The history and alleged cause of injury has been noted in

Ext. P2 as (due to rape and

dragging of the body) There were three small linear abrasions on the outer quadrant
of left breast. There was another linear abrasion 1.50 cm on the left side of labia.
Bloodstained discharge was present on the external genitalia. Hymen is seen
lacerated and tender. There was bleeding during examination at four places. Cervix
and uterus were found normal. In Ext. P2 medical certificate PW 4 opined that PW 1
was subjected to recent sexual intercourse.
7. The evidence of PWs 6 and 7 is also important. They have deposed that they had
gone for coolie work and on the date of incidence when they returned from the place
of work they were told by their daughter that she was raped by the accused. PW 6
and 7 took PW 1 to the Police Station and thereafter she was taken to the hospital for
medical examination. The learned counsel for the appellant contended that the entire
case was foisted against the accused at the instance of PW 2 who was on inimical
terms with the accused and his father. It is true that PW 2 stated that he is not' very
friendly towards the father of the accused. But there is no evidence to, show that PW
2 had Any reason to have any special enmity towards the accused and his father. It is
also difficult to believe that PW 2 instigated PWs 1, 6 and 7 to file a false complaint
against the accused. The presence of the accused at the relevant time in the house of
PW 1 is proved by PWs 2 and 3. It is proved that PW 1 was subjected to sexual
intercourse. The counsel for the appellant seriously attacked the evidence of PW 1. It
is true that in the cross Examination PW 1 stated that she had been giving evidence
as Instructed by the police officers. But the evidence of P.W. 1 cannot be weighed
merely on these answers given in the cross-examination. The entire testimony of PW
1 is to be viewed in the background that she is. an illiterate village woman having
not much experience in giving evidence in a court of law. The answers, given by PW
1 in cross-examination are not sufficient to throw over board the entire testimony.
The evidence of PW 1 would clearly show that the accused had gone to her house and
she was subjected to sexual intercourse by him. In a case of rape corroboration is
not the sine qua non for a conviction. In Bharwade Bhoginbhai Hirjibhai v. State of
Gujarat (MANU/SC/0090/1983 : A.I.R. 1983 S.C. 753) the Supreme Court held:
Corroboration is not the sine qua non for a conviction in a rape case. In the
Indian setting, refusal to act on the testimony of a victim of sexual assault in
the absence of corroboration as a rule, is adding insult to injury. Why should
the evidence of the girl or the woman who complains of rape or sexual
molestation be viewed with the aid of spectacle fitted with lenses tinged with
doubt, disbelief or suspicion? To do so is to justify the charge of male
chauvinism in a male dominated society.
In the present case the evidence of PW 1 is further corroborated by the evidence of

14-03-2019 (Page 3 of 5) www.manupatra.com BANARAS HINDU UNIVERSITY

PWs 2 and 3 and Ext. P2 medical certificate. Therefore, it is proved beyond
reasonable doubt that the accused had sexual intercourse with PW 1 on 1-3-1988 - as
alleged by the prosecution.
8 . One of the serious contentions urged by the learned counsel for the appellant is
that the evidence adduced in this case would show that PW 1 bad consented to the
sexual act and therefore the accused has not committed rape. The learned counsel
heavily relied on the conduct of PW 1. at the time of the incident and after the act
and it was contended that consent could be easily discerned from the above
circumstances. It was pointed out by the learned counsel that PW 1 had not raised
any alarm at the time when she, was sexually assaulted by the accused The house of
PW 1 is a small one and, there are so many neighbouring houses. Many of the
neighbours are related to PW 1. In the chief examination PW 1 stated that she was
suddenly caught hold of by the accused and that she saw the accused only when she
was caught: from behind. In the cross-examination she stated that the accused was
in the house for about one hour immediately prior to the incident. The conduct of PW
1 after, the incident also has been commented upon by the counsel for the appellant
She saw PW 2 immediately after the incident. She did not divulge anything to him
After the incident she continued the cooking of the food and her younger sisters came
from the school and they were fed by PW 1. She had also cleaned the premises of the
house and the utensils. She also did not give a negative answer to the suggestion put
by the defence counsel as to whether she had previous acquaintance with the
accused. The learned counsel for the appellant contended that the above
circumstances would reveal clearly that PW 1 had consented to the sexual act and
therefore, the accused has not committed the offence punishable under section 376
I.P.C.
9. The vital question to be decided is whether the above circumstances are sufficient
to spell out consent on the part of PW 1. In order to prove that there was consent on
the part of the prosecutrix it must be established that she freely submitted herself
while in free and unconstrained position of her physical and mental power to act in a
manner she wanted. Consent is an act of reason accompanied by deliberation a mere
act of helpless resignation in the face of inevitable compulsion, non resistance and
passive giving in cannot be deemed to be "consent". Consent means active will in the
mind of a person to permit the doing of the act of and knowledge of what is a to be
done, or of the nature of the act that is being done is essential to a consent to an act.
Consent supposes a physical power to act, a moral power of acting and a serious and
determined and free use of these powers Every consent to act involves submission,
but is by no means follows that a mere Submission involves consent. In Jowitt's
Dictionary of English Law II Edn. Vol. 1 explains consent as follows:
An act of reason accompanied with deliberation, the mind weighing, as in a
balance, the good or evil on either side. Consent supposes three things--a
physical power, a mental power and a free and serious use of them. Hence it
is that if consent be obtained by intimidation, force, mediated imposition,
circumvention, surprise, or undue influence, it is to be treated as a delusion,
and riot as a deliberate and free act of the mind.
10. On a proper appreciation of the evidence it can be seen that PW 1 resisted the
sexual assault by the accused. The presence of injury on her breast and private parts
clearly indicates that she voluntarily objected to the act of sexual act. The fact that
she did not make an alarm or the fact that she did not tell PW 2 that she was sexually
assaulted by accused are not sufficient to indicate that she consented to sexual act.

14-03-2019 (Page 4 of 5) www.manupatra.com BANARAS HINDU UNIVERSITY

She waited for her parents and as soon as they came the matter - was reported to the
police. It is not proved that PW 2 instigated PW 1 and her parents to inform the
police. There was no delay in giving information to the police. To crown all these, the
recovery of 4 hooks of blouse from the scene of occurrence is clearly indicative of the
fact that PW 1 resisted the sexual assault. The hooks were torn from the blouse worn
by PWI. Then hooks were found in the place of incident and it is spoken to by the
father of PW 1 also. Therefore the contention of the learned counsel for the appellant
that PW 1 had given consent and therefore the offence under section 375 I.P.C. is not
made out cannot be accepted. The finding of the learned Assistant Sessions Judge
that the accused committed the offence of rape is only to be confirmed in view of the
clear evidence of the prosecution witnesses supported by medical, evidence. The
conviction of the accused is confirmed.
In this case the appellant has been sentenced to undergo rigorous imprisonment for a
period of 8 years. The accused is a person aged 24 and he is stated to be a coolie. It
is quite probable that accused might have more than a nodding acquaintance with PW
1. The long incarceration of the appellant in jail would only turn him to be a
hardened criminal. In view of the peculiar circumstances of the case I reduce the
sentence from 8 years to 2 years The appellant shall surrender to the bail bonds for
undergoing the imprisonment.
Crl. appeal is disposed of as stated above.
© Manupatra Information Solutions Pvt. Ltd.

14-03-2019 (Page 5 of 5) www.manupatra.com BANARAS HINDU UNIVERSITY