Absence of bodily injury implies consent(?) in rape cases…

By Deeksha Sahni

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The High Court of Punjab and Haryana in a recent decision in Union Territory, Chandigarh v. Amit Kumar @Rachu & Others passed a very absurd statement to refuse to grant Leave to Appeal against the judgment of acquittal in a rape case. The Court opined that since there were no injuries on the body of the rape victim, it implies that the victim had consented to have sexual intercourse in these words, “Medical examination has also highlighted that there was no injury on any part of the prosecutrix. Medical Expert PW-5 (Dr. Parijat) has stated that there were chances of recent sexual intercourse with the prosecutrix. In cross-examination, this Medical Expert has testified that no injury on the private part of the prosecutrix was noticed. Meaning thereby, the doctor did not find any injury on the person of the prosecutrix, from which, it can be inferred that she was a consenting party to the sexual intercourse.” Interestingly, the statement of the court was in utter disregard to a number of instances where the Supreme Court has held that presence of bodily injuries was not necessary to prove the offense of rape and to an established principle that the victims of sexual assault shall not be treated as accomplice and thus their evidence does not require corroboration provided the evidence of the victim is cogent, reliable and trustworthy gaining the confidence of the Court.

The court in the case of Krishan v. State of Haryana, held that the contention of the accused that the prosecutrix was habitual of sexual intercourse and there were no signs of recent forcible sexual intercourse or injuries on her body, could not stand since it was not expected that every rape victim should have injuries on her body to prove her case. Even in Dastagir Sab and Anr v. State of Karnataka, the court reiterated that Injury on the body of the person of the victim is not a sine qua non to prove a charge of rape and the absence of injuries on the person of the prosecutrix would not by itself be sufficient to discard the prosecution case. The contention of the appellants in a case where they forcibly took a girl into a car to a canal and there raped her one after another that the absence of any injury on the back of the prosecutrix or any part of her body falsifies the case of rape by the appellants on her because the prosecutrix was expected to offer resistance which would normally cause certain injury on her body and particularly on the back and as there was no such injury, it should be held that there was no such incident as alleged was also held by the court to be devoid of any merit. The court noted that it was not necessary that whenever resistance is offered there must be some injury on the body of the victim. The appellants were four in number and the prosecutrix being a girl of 19/20 years of age, she was not expected to offer such resistance as would cause injuries to her body. Thus, there have been more than one instances where the courts have outrightly rejected the arguments of the accused that keeping in mind the absence of any bodily injuries it cannot be said that the offense has been committed.

The opinion of the Court was also flawed on the lines of section 114-A of the Indian Evidence Act which makes it clear that where the sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the Court that she did not consent, the court shall presume that she did not consent. Thus, the absence of consent is the presumption to start with. The court in the impugned judgment in order to refute this general presumption relied upon the medical examination reports of the victim of no bodily injuries. The question thus arises whether something like consent which is to be communicated either verbally or non-verbally can be proved by the medical condition of a victim or in other words, the medical condition shall even be considered to decide upon the question of consent. Section 375 of the Indian Penal Code, 1860 defines rape and the scope of the definition of the rape has only been broadened after the 2013 Amendment. Penetration of not only penis but of any object or part of the body to any extent not only into the vagina but also into the mouth, urethra or anus of a woman and manipulation of any part of the body to cause penetration is included under the new definition of rape. Thus, to constitute the offense of rape it is not necessary that there should be complete penetration of the penis with the emission of semen and rupture of the hymen. Penetration, however slight, is sufficient. It has also been a view of the court in Rafiq v. State of U.P that partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is very much a possibility that the offense has been committed but no injuries were found on the body of the victim keeping in mind the very definition of the offense and keeping also in mind that it is not always possible for the victim of the offense to resist in order to suffer at least some bodily injuries and resistance may not always cause some bodily injuries. The impugned order when it states that absence of injuries means consent, it has indirectly made resistance an important ingredient of the offense which impliedly challenges the definition of the consent provided in the explanation attached to the section. According to the explanation, there has to be an unequivocal agreement to engage in a particular sexual act and the absence of resistance will not imply consent.  However, the logical sequence that follows as per the impugned order is the absence of resistance means the absence of bodily injuries which in turn means the presence of consent.

The presumption that if no bodily injuries are evident on the victim, the victim had consented to the sexual intercourse with the accused and thereby no rape has been committed ignores the fact that rape is not just a medical condition but much beyond that. Rape is an offense that has a deep psychological effect on the victim. It is an offense that challenges the dignity of the women and leaves a deep scar on the minds of the women that they start feeling hatred and disgust against their own bodies. Therefore, it is an impediment on the part of the court that the balanced view of the situation is taken. The legislative wisdom reflected by the statutes must be respected by the courts and the permitted departure shall only be made for compelling and convincing reasons.

 

[The author is a fourth-year law student at Maharashtra National Law University, Mumbai]

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