“Non-resistance from the first time of sexual assault, amounts to pre-consent” : Madras High Court Acquits Man Holding that Victim Pre-Consented

Setting aside the conviction order in a sexual assault matter the Madras High Court has held that the victim girl's non-raising of resistance from the first time that the sexual assault was committed amounted to her "pre-consent".

“Accordingly, the consent given by the victim girl, cannot be held as a misconception of fact”, Court held.

The bench of Justice R. Pongiappan observed that in light of the preparation of complaint in the matter and the evidence given by a doctor, the court had developed doubts as to whether the prosecutrix had approached the police with true facts or false averments.

Accordingly, allowing the criminal appeal, the court acquitted the accused of all charges. The present criminal appeal was filed against the conviction and sentence order of an Additional Sessions Judge cum Mahila Court. The accused was convicted under Section 376 of Indian Penal Code (IPC) and accordingly sentenced to undergo ten years of rigorous imprisonment.

Prosecution’s Case

The prosecution submitted that the victim and the accused were residents of the same village and had fallen in love with each other. Their relationship continued for a year, after which the prosecutrix requested the accused to marry her. He made a promise to her of marriage and simultaneously made demands on her of a sexual nature. Following this the prosecutrix submitted that she was assaulted by the accused in May and became pregnant as a result of this assault in July.

Thereafter, she said that upon her subsequent request to the accused to marry her, he refused and asked her to abort the fetus. Following this, a complaint was lodged by the victim against the accused for sexual assault, resulting in his conviction. 

Court’s Observations

The court noted that in respect to the lodging of the complaint, while the victim girl had stated in her cross-examination that she "wrote" the complaint, however, from the evidence it appeared that the same was "typed" one - indicating that even in respect to the preparation of the complaint, the victim girl had given contradictory evidence. The court, however, remarked that the said contradiction alone was not sufficient to hold the entire prosecution story as false.

Thereafter, the court took note of the fact that the victim had filed the complaint only after a 2.5-month lapse since the incident.

The court further noted that, “...she has specifically stated before the trial Court that after she fell in love with the accused, they regularly met in the garden and developed her (their) relationship. In this occasion, the act of the prosecutrix clearly reveals the fact that she submitted herself on (to) carnal pleasures of (with the) accused on (a) promise of marriage.”

Highlighting that the victim had cohabited with the accused on the promise of marriage and the same had continued for several months, the court said, “The prosecutrix had complained about the issue to others only at the time the appellant disowned his promise. The said circumstances reveal the fact that during the relevant point of time, the prosecutrix was also willing and the accused had also promised to marry her, after the completion of his brother's marriage.”

“Eventually, when she conceived and insisted that the marriage should be performed as quickly as possible, the appellant suggested for abortion. Since the proposal was not accepted by the prosecutrix, the appellant disowned the promise and ultimately, the case has been registered.”

Alongwith the given factual matrix the court relied on the fact that the prosecutrix's medical examination report had revealed that she underwent her menstrual cycle even after the alleged date of assault given by her (as a result of which she had claimed impregnation). The court said in this regard, "...if the evidence by the prosecutrix is found correct, there was no change for her to reach the menstrual period after 07.05.2009...Therefore, the said circumstances create a doubt whether the PW1 had lodged a complaint with true averments."

In light of the discussion in the matter, the court doubted the truthfulness of the victim’s averments and allowed the criminal appeal petition by the accused. The court acquitted the accused of all charges and directed for refund of the amount of fine paid by him, if any.

Case Title: Chinnapandi v. State
Edited by Shreya Agarwal