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Synopsis

The Orissa High Court has held that if a rape victim, who is a grown up lady and having experience of sex, fails to offer sufficient resistance to the accused, then the court may find that such act was not against her will.

“Being a married lady and accustomed to sexual intercourse, if the act was without her consent, she could have protested or resisted and in that event, not only there would have been some injuries on the body of the appellant (accused) but also on her own body as well, since it was alleged to be a forcible intercourse,” observed a bench of Justice S.K. Sahoo while hearing a criminal appeal. 

In 2021, the trial Court held the appellant guilty of rape and sentenced him to 10 years of imprisonment with a fine of Rs.5,000.

In FIR, the victim said that while she was returning back home with her breast-feeding child, her brother-in-law committed rape on her. Her husband witnessed the occurrence, when he went in search of her. 

On completion of investigation, police submitted a charge sheet under section 376(2)(f) of the Indian Penal Code against the appellant.

The Medical Officer, who examined the victim, deposed that she had no bodily injury on her person and there was no sign and symptom of any recent sexual intercourse. She further stated that there was no evidence of bleeding injuries and the blood group of the victim was ‘O+ve’.

The trial court had held that semen stains of blood group ‘B’ on the saya of the victim did not belong to the accused who has the blood group of ‘A+ve’.

In his defence, the appellant argued that he was a married person and after the death of his wife, he got another lady as concubine, who had two children which was opposed to by the victim and her husband and a false case has been foisted against him.

Advocate Chandan Samantaray, appearing for the appellant, contended that prosecutrix was a consenting party and after having been caught red-handed with the accused in a compromising position in the jungle by her husband, who all of a sudden arrived at the scene of the occurrence, the victim tried to put the entire blame upon the appellant to save her own skin and made false accusation of commission of rape.

He argued that the conduct of the victim in not protesting to the act committed by the appellant, not raising any hulla to draw the attention of others and absence of any injury on her person substantiate the possibility of a consensual intercourse, which the learned trial Court has overlooked. He urged that it is a fit case where benefit of doubt should be extended in favour of the appellant.

On the other hand, advocate Manoranjan Mishra, appearing for the State, submitted that section 114-A of the Evidence Act, provides that the court shall presume that the woman alleged to have been raped did not consent if such woman states in her evidence before the Court that she did not consent.

“In case of stiffest possible resistance from the victim, it is expected to have resulted in injury over the penis or scrotum of the accused or abrasions over other parts of the body caused by the nails of the prosecutrix,” the high court observed while referring to the dictum laid down by Supreme Court in the case of Pratap Misra & others vs. State of Orissa.

Further, It said that there was no reason as to why the prosecutrix would silently abide to have intercourse without putting up any resistance, particularly when she was a fully grown up lady and experienced in sexual intercourse.

“The evidence on record indicates that in order to save her own skin, the victim manipulated the occurrence as if the appellant was committing rape on her,” the high court said while acquitting the appellant. 

Cause Title- Sanu Munda vs. State of Odisha