The accusation in the case is that on a Sunday in February 2009, and on various subsequent days, the accused committed rape on the victim girl, a minor aged 14 years belonging to a Scheduled Caste, and impregnated her. The offenses alleged against the accused are the offenses punishable under Section 376 of the Indian Penal Code (the IPC) and Sections 3(1)(xii) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, as it stood then.
Facts: The victim girl belongs to a Scheduled Caste. She was studying in 8th Standard during the period when the accused allegedly had sexual intercourse with her. The father of the victim girl had abandoned his wife and children including the victim girl and they were residing in a colony. The mother of the victim girl is a housemaid. The accused is a person who was residing in the immediate neighborhood of the victim girl with his wife and granddaughter. He was aged about 59 then. The victim girl used to visit the house of the accused for watching television and she used to call the accused as ‘Thankappanachan’.
One day when the victim girl went to the house of the accused during 2009 for watching television, the accused and his granddaughter alone were there in the house. When victim girl was watching television, the accused sent his granddaughter away to a shop, closed the door of the house, pulled her to the adjacent room, made her lie down in a cot, and had sexual intercourse with her She said that though she attempted to make a noise, the accused prevented her from doing so by closing her mouth using his hand. She said that she did not disclose this to her mother due to fear.
Accused called her to his house one day thereafter also when he was alone in the house and when she went there, the accused pulled her inside the house and repeated the same thing. She deposed that the accused has repeated the same on several occasions thereafter. The victim girl said that the accused used to tell her that it will be shameful to her if she discloses the incidents to anyone. The victim girl said that she did not disclose the incidents to anyone as she was afraid that the accused would do something to her mother and sister.
The contention was raised by the learned counsel is that when it is admitted by the victim girl herself that she used to go to the house of the accused as and when desired or required by the accused and had sex with him, the relationship can only be consensual.
The court below, on a detailed evaluation of the materials on record, found that the accused had sexual intercourse with the victim girl and it is the accused who has impregnated her.
• Although the court found that the prosecution has not proved the age of the victim girl and failed to establish that the case is one that falls under the sixth description in the definition of ‘rape’ in terms of Section 375 of the IPC as it stood then,
• The court found that the prosecution has failed to establish the guilt of the accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, it held that the accused is guilty under Section 3(1) (xii) of the said statute.
Reverting to the facts, in the poor social background in which the victim girl was brought up, as suggestive from the name ‘Thankappanachan’ used by the victim girl to call the accused, the accused was a fatherly figure for the victim girl.
The court said that accused has no case that the first instance of sexual intercourse was consensual. The case put forward by the accused is only that the admitted conduct of the victim girl is going to the house of the accused as and when desired by him subsequently would indicate that the latter instances of sexual intercourse were consensual. Insofar as it is established that the first instance of sexual intercourse spoken to by the victim girl was not consensual, it is immaterial as to whether the subsequent instances of sexual intercourse was consensual.
The victim girl deposed that she did not disclose the incidents to her mother due to fear. Similarly, she said that she did not disclose the incidents to anyone as she was afraid that the accused would do something to her mother and sister. In other words, it is clear from the materials on record that the victim girl was under a social and psychological hierarchical threat. In a situation of this nature, the conduct on the part of the victim girl in surrendering before the accused as and when desired by him cannot be said to be unusual or abnormal and such surrender can never be construed as consensual acts of sexual intercourse.
Justice P.B.SURESH KUMAR ended his judgment with a quote from the book “Trauma and Recovery”.
“When a person is completely powerless, and any form of resistance is futile, she may go into a state of surrender. The system of self-defense shuts down entirely. The helpless person escapes from her situation not by action in the real world but rather by altering her state of consciousness…..” – The court dismissed the appeal
